11 


Wi 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PLEADING  AND  PRACTICE 


UNDER  THE  CODES  OF 


OHIO,  NEW  YORK,  KANSAS  AND  NEBRASKA 


AND  APPLICABLE,  ALSO,  TO  THE  PRACTICE  IN  OTHER  STATES  IN 
WHICH    A    CODE    HAS    BEEN    ADOPTED 


WITH   APPROPRIATE  FORMS 


By   SIMEON   NASH 


FOURTH    EDITION,    GREATLY    ENLARGED 


VOL.  I 


CINCINNATI 

ROBERT   CLARKE   &    CO 

1874 


T 
r?74- 


Entered,  according  to  act  of  Congress,  in  the  year  1S73,  by 
SIMEON  NASH, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


£-*\~k<\ 


Stereotyped  or 
Ooden,  Campbell  &  Compant, 

176  Elm  St..  Cincinnati   O 


-J 


PREFACE 


There  seemed  to  be  a  call  by  the  profession  for  a  new  and  en- 
larged edition  of  this  work.  The  favor  it  has  met  with  calls 
for  the  grateful  acknowledgments  of  the  author,  and  encour- 
ages him  in  undertaking  this  enlarged  edition  of  the  work. 

The  present  edition  has  been  enlarged  by  the  addition  of  over 
six  hundred  pages  of  new  matter.  In  the  first  place,  I  have 
sought  to  cite  all  the  decisions  that  have  been  made  upon  the 
pleading  and  practice  under  the  code.  I  have  consulted  the 
reports  of  the  Comt  of  Appeals  of  New  York,  those  of  the  Su- 
preme Courts  of  Ohio  and  of  Kansas,  and  have  also  examined 
the  codes  in  those  three  States  and  that  of  Nebraska.  These 
codes  are  substantially  alike,  so  far  as  pleadings  are  concerned, 
and  in  much  of  their  practice.  In  order  to  make  the  book  an 
authority,  I  have  not  simply  given  my  version  of  a  decision,  but 
I  have  copied  the  language  of  the  court,  so  that  its  authority 
should  be  added  to  my  own  statement. 

I  have  also  added  a  large  number  of  new  forms  of  petitions  and 
answers.  The  collection  of  forms  of  petitions  in  negligence  will,  I 
think,  be  found  more  copious  and  varied  than  in  any  other  work.  I 
have  copied  the  most  of  them  from  cases  actually  decided,  so  that 
they  may  be  considered  as  authority. 

To  these  forms  I  have  appended  notes,  presenting  the  law  in- 
volved in  the  form.  These  notes  are  real  briefs  on  the  law  pre- 
sented in  the  form,  and  will  be  found  very  convenient  to  the  pro- 
fession, and  save  much  labor  to  the  practitioner.  Questions  of 
evidence,  the  rule  of  damages,  and  numerous  other  points  are 
stated,  and  the  cases  referred  to. 

I  have  added  a  brief  statement  of  the  law  in  regard  to  com- 


IV  PREFACE. 


mon  counts,  having  repeatedly  witnessed  mistakes  made  from 
a  want  of  that  knowledge.  Young  lawyers  seem  to  regard  the 
code  as  the  sole  guide  in  pleading ;  whereas,  it  only  states  well- 
recognized  general  principles,  the  application  of  which  must  be 
learned  from  a  thorough  study  of  the  law,  as  embodied  in  reports 
and  elementary  works  upon  the  various  subjects  of  the  law,  as 
well  as  works  on  pleading,  like  those  of  Chitty,  Gould,  and 
Stephen. 

I  have  also  added  a  chapter  on  quo  warranto,  with  accompanying 
forms,  taken  from  cases  decided.  These  will  be  found  very  con- 
venient, since  these  forms  are  very  difficult  to  find.  As'  a  quo 
warranto  was  originally  a  criminal  proceeding,  whatever  forms 
there  were,  are  found  in  works  of  criminal  forms,  and  only  in  a 
few  of  those. 

The  index  to  a  work  like  this,  is  a  more  difficult  task  than  most, 
who  have  not  tried  their  hand  at  it,  may  think.  The  forms  for  peti- 
tions and  answers  will  be  found  under  the  head  of  Pleading,  Torts, 
Promises,  and  Equity  Forms.  There  are  also  other  heads  under 
which  particular  forms  may  be  found ;  but  by  running  through 
the  above  titles  in  the  index,  every  petition  in  the  work  will  be 
found.  All  the  forms  of  answers  will  be  found  under  that  title,  and 
under  other  titles  particular  forms  may  be  found. 

The  plan  adopted  in  the  first  edition  has  been  adhered  to  in 
this.  Experience  has  shown  that  these  forms  are  the  shortest 
and  the  most  definite  of  any  in  use.  In  consulting  the  old  forms, 
and  in  substance  following  them,  I  knew  I  was  on  safe  ground, 
and  presented  a  form  that  would  stand  all  legal  objections ; 
whereas,  to  undertake  in  disregard  of  the  wisdom  of  the  past 
and  create  an  entire  new  collection  of  forms  as  unlike  the  former 
as  some  practitioners  seem  to  admire,  I  might  be  guilty  of  folly, 
and  produce  forms  which  would  be  known  to  stand  a  demurrer, 
when  a  court  of  last  resort  should  have  decided  in  favor  of  their 
validity.  This  would  have  been  to  introduce  uncertainty  and 
create  disappointment  to  the  pi'ofession.  I  was  pledged  and 
bound  to  give  valid  forms  or  none,  unless  I  had  been  willing  to 
practice  a  fraud  on  the  profession.      If  I  copied   the  substance 


PREFACE. 


of  a  common-law  declaration  or  plea,  I  knew  I  gave  a  form 
that  could  be  relied  on.  These  old  forms,  too,  discriminate  be- 
tween what  is  evidence  and  what  is  fact.  The  code,  like  plead- 
ing at  common  law,  requires  facts,  not  evidence,  to  be  stated,  and 
hence  the  necessity  of  discriminating  between  the  two.  This  is 
clearly  done  in  all  common-law  forms  of  pleading ;  and  hence  the 
wisdom  and  necessity  of  consulting  those  forms.  It  is  the  only 
way  in  which  the  forms  could  be  an  authority,  and  not  simply  ex- 
press the  opinion  of  the  author.  It  is  believed  that  these  opinions 
now  generally  prevail  with  the  profession. 

The  work  will  be  found  useful  and  convenient  to  all  lawyers, 
as  the  forms  here  given  can  easily  be  converted  into  a  declaration 
or  a  plea  ;  and  the  notes,  attached  to  the  forms,  will  be  found 
labor-saving  to  any  lawyer. 

The  forms  in  actions  against  railroads  will  be  found  fuller,  I 
think,  than  in  any  other  work  that  has  come  under  my  notice.  This 
branch  of  the  law  and  that  of  negligence  are  becoming  very  com- 
mon and  important,  while  the  law  on  those  subjects  has  grown  up 
in  the  last  twenty  years,  and  no  forms  are  found  scarcely  in  the  old 
books  suited  to  the  cases  now  constantly  arising  in  practice. 

I  have  endeavored  to  make  this  new  edition  worthy  of  the  profes- 
sion, whose  arduous  labors  it  is  sought  to  relieve ;  and  I  submit  it  to 
the  candor  of  my  brethren,  who  know  how  to  appreciate  the  value 
of  an  honest  and  earnest  endeavor  to  present  a  work  which  may 
lighten  their  labors  and  command  their  confidence. 

SIMEON  NASH. 
Gallipolis,  October  22, 1873. 


CONTENTS. 


VOL.    I. 


CHAPTER  I. 
Preliminary  provisions  of  the  code \ 

CHAPTER  II. 
Form  of   civil  action 2 

CHAPTER  III. 
Time  of  commencing  civil  actions 6 

CHAPTER  IV. 
Parties 21 

CHAPTER  V. 
The  county  in  which  actions  are  to  be  brought 61 

CHAPTER  VI. 
Commencement  of  actions 64 

CHAPTER  VII. 
Appearance 87 

CHAPTER  VIII. 
Joinder  of  actions 96 

CHAPTER  IX. 
Jurisdiction  of  the  courts 112 

CHAPTER  X. 
Pleadings U4 

CHAPTER  XI. 
Demurrer 146 

CHAPTER  XII. 
Answer 163 


VU1  CONTENTS. 


CHAPTER  XIII. 
Reply 259 

CHAPTER  XIV. 
Verification  of  pleadings 270 

CHAPTER  XV. 
Time  to  answer 277 

CHAPTER  XVI. 
Supplemental  petitions  and  answers 283 

CHAPTER  XVII. 
Amendments 297 

CHAPTER  XVIII. 
Forms  of  petitions 345 

CHAPTER  XIX. 
Forms  of  demurrer 617 

CHAPTER  XX. 
Forms   of  answers 619 

CHAPTER  XXI. 
Equity  forms 722 


VOL.    II. 


CHAPTER  XXII. 
Arrest  and  bail 791 

CHAPTER  XXIII. 
Replevin 812 

CHAPTER  XXIV. 
Attachment 838 

CHAPTER  XXV. 
Injunctions 882 


CONTENTS.  ix 

CHAPTER  XXVI 
Receivers,  and  other  provisional  remedies 908 

CHAPTER  XXVII. 
Evidence 923 

CHAPTER  XXVIII. 
Issue 959 

CHAPTER  XXIX. 
Trial 961 

CHAPTER  XXX. 
Trial  by  the  court 1009 

CHAPTER  XXXI. 
Trial  by  referees 1014 

CHAPTER  XXXII. 
Bill  of  exceptions 1032 

CHAPTER  XXXIII. 
New  trial 1038 

CHAPTER  XXXIV. 
Judgments 1054 

CHAPTER  XXXV. 
Master  commissioners 1100 

CHAPTER  XXXVI. 
Executions HQfi 

CHAPTER  XXXVII. 
Causes  of  action  which  survive,  and  abatement  of  actions 1182 

CHAPTER  XXXVIII. 
Revivor  of  actions 1183 

CHAPTER  XXXIX. 
Real  actions, 1194 

CHAPTER  XL. 
Admission,  inspection,  etc.,  of  papers  and  documents 1224 


X  CONTENTS. 


CHAPTER  XLI. 
Motions  and  orders •••••  1228 

CHAPTER  XLII. 
Error  in  civil  cases 1283 

CHAPTER  XLIII 
Miscellaneous  matters 1275 

CHAPTER  XLIV. 
Record  books 1300 

CHAPTER  XLV. 
Proceedings  upon  mandamus 1304 

CHAPTER  XL VI. 

QUO  WARRANTO 1317 

CHAPTER  XLVII. 
Appeals  and  second  trials 1340 

CHAPTER  XLVIII. 
Partition 1347 

CHAPTER  XLVIX. 
Dower 1359 

CHAPTER  L. 
Divorce  and  alimony 1365 


PLEADING  AND  PRACTICE 


UNDER 


THE  CIVIL  CODE 


CHAPTER  I. 


PRELIMINARY  PROVISIONS  OF  THE  CODE. 

Section  1.  This  act  shall  be  known  as  the  Code  of  Civil  Pro- 
cedure of  the  State  of  Ohio. 

Sec.  2.  The  rule  of  the  common  law,  that  statutes  in  derogation 
thereof,  are  to  be  strictly  construed,  has  no  application  to  this  code. 
Its  provisions,  and  all  proceedings  under  it,  shall  be  liberally  con- 
strued with  a  view  to  promote  its  object,  and  assist  the  parties  in 
obtaining  justice. 


This  last  section,  of  course,  has  no  meaning,  since  it  can  not  au- 
thorize the  courts  to  make  law.  In  Ohio,  we  never  had  any  com- 
mon law  mode  of  procedure  ;  it  has  always  been  regulated  by  stat- 
ute. The  rules  of  pleading  were  followed  simply  as  indicating  the 
form  and  facts  to  be  stated  in  order  to  show  a  cause  of  action,  or  a 
matter  of  defense.  They  were  never  binding  further  than  the  law 
was  binding.  Hence,  in  Ohio,  our  forms  had  assumed  a  brevity 
unknown  in  New  York  and  England.  We  adopted  the  new  and 
short  forms  introduced  into  England  by  act  of  Parliament,  and  the 
rules  of  court  under  it,  and  did  it  without  any  legislation  what- 
ever. We  adopted  the  principles  of  pleading  and  the  code  has 
done  the  same. 


FORM    OF    CIVIL    ACTION. 


As  to  the  recommendation  that  the  code  is  to  be  liberally  con- 
strued, we  know  not  what  that  means.  The  courts  must  endeavor 
to  ascertain  its  meaning,  and  that  is  all  that  construction  can  do; 
but  this  meaning,  if  possible,  should  be  found  to  be  in  harmony 
with  the  object  of  the  code.  No  court  ever  followed  any  other  rule 
of  construction,  nor  can  any  other  be  devised. 

In  our  views  upon  the  various  provisions  of  the  code,  we  have 
ever  kept  this  rule  in  view  ;  and  hence  have  endeavored  so  to  con- 
strue it  as  to  make  it  a  means  of  assisting  parties  in  obtaining  jus- 
tice. If  we  have  strained  and  liberally  construed  any  of  its  pro- 
visions, it  has  been  with  the  single  object  of  shaping  the  code  so 
as  to  make  it  a  practicable  mode  of  obtaining  justice. 


CHAPTER  II. 


FOEM   OF   CIVIL   ACTION. 

Sec.  3.  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  actions  and  suits  heretofore  existing,  are  abol- 
ished; and  in  their  place,  there  shall  be,  hereafter,  but  one  form 
of  action,  which  shall  be  called  a  civil  action. 


This  section  is  an  important  one,  as  it  wipes  out  all  the  past,  and 
leaves  the  field  swept  for  the  erection  of  the  new  edifice.  This  section, 
however,  abolishes  only  forms  and  classification.  The  first  is  easy; 
the  second  can  not  be  done,  since  classification  is  founded  in  the 
nature  of  things.  Though  a  suit  at  law  and  a  suit  in  chancery  may 
both  be  called  a  civil  action,  the  inherent  difference  between  the 
two  remedies  still  exists,  and  will  continue  to  exist,  until  the  whole 
structure  and  object  of  equitable  remedies  founded  upon  equitable 
principles  are  changed  or  abolished. 

Classification  has  hitherto  been  regarded  as  the  great  triumph 
of  science,  as  its  great  mission.  To  observe  facts,  to  obtain  a  knowl- 
edge of  individuals,  and  to  arrange  these  facts  and  individuals  into 
classes  according  to  some  discovered  relation,  is  the  first-  rule  and 
law  of  scientific  progress — the  road  that  all  science  must  travel  in 
its  progress  toward  a  perfect  development.  The  civil  law  has  been 
subjected  in  its  development  to  this  necessary  law  of  all  science  ;  and 


FORM   OF    CIVIL    ACTION. 


the  various  actions  and  remedies  were  the  result  of  this  progress, 
the  classification  of  its  facts  and  remedies  being  based  upon  the  re- 
lation existing  among  them. 

The  code  reverses  the  scientific  process,  ignores  all  classification, 
and  throws  the  whole  science  again  into  a  single  class — into  a  mul- 
titude of  individual  facts,  without  any  law  of  aggregation  or  ar- 
rangement. The  law  started  in  the  remote  past  from  this  point, 
and  has,  under  the  so-called  spirit  of  reform,  but  really  of  destruc- 
tion, again  returned  to  it.  In  no  other  science  would  such  an  ab- 
surdity have  been  tolerated,  nay,  not  even  thought  of,  but  to  be 
ridiculed. 

There  is  now  to  be  but  one  form  of  action.  This  can  not  be. 
The  form  of  an  action  is  the  manner  in  which  the  facts  constituting 
the  action  are  to  be  stated.  This  statement  must  be  as  various  as  are 
the  facts  which  constitute  a  right  of  action.  The  construction  to  be 
given  to  this  language  must  be  that  there  is  to  be  but  one  kind  or 
class  of  actions,  while  the  form  of  each  action  must  correspond  to 
the  nature  of  the  facts  and  law  on  which  it  rests.  The  form  of  an 
action  founded  on  principles  of  equity  must  always  differ  from  one 
founded  on  legal  rights  ;  while  an  action  to  recover  a  sum  of  money 
must,  in  its  form,  ever  differ  from  one  to  recover  specific  real  or 
personal  estate. 

The  code  then  creates  a  single  class  of  actions ;  makes  every  ac- 
tion an  action  on  the  case — an  action  on  the  peculiar  facts  of  that 
case,  without  any  regard  to  classes  of  actions ;  and  yet  this  very 
effort  to  ignore  classification  is  violated,  since  the  code  speaks  of 
actions  to  recover  money,  to  recover  specif  c  real  property,  to  recover 
specific  personal  property,  and  all  other  actions.  Here  are  four  classes 
of  actions  distinctly  shadowed  forth,  and  which,  being  founded  in 
the  very  nature  of  things,  will  undoubtedly  become  the  origin  of 
a  new  classification  of  actions  to  grow  up  under  the  code  itself. 
These  will  again  give  occasion  for  subdivisions,  until  order  shall 
be  educed  out  of  the  chaos  created  by  the  code.  The  human  mind 
must  classify  and  arrange,  and  even  legislation  can  not  prevent  it. 

The  whole  body  of  the  law,  Avhether  administered  in  a  court  of 
law  or  in  a  court  of  chancery,  is  left  in  full  vigor.  The  remedy, 
not  the  law,  is  changed  ;  nor  does  the  remedy  indeed  seem  to  be 
changed  ;  if  is  rather  the  name  than  the  thing.  The  object  hereto- 
fore sought  by  a  bill  in  chancery  must  still  substantially  be  sought 
by  the  same  mean,  though  now  called  a  civil  action,  instead  of  a 
hill  in  chancery;  and  an  action  on  a  promissory  note,  or  other  con- 
tract, must   still   assume  the  shape  of  an  action  at  law,  though  un- 


FORM   OP   CIVIL   ACTION. 


der  a  new  name.  The  law  remains  the  same,  facts  will  repeat 
themselves,  and  a  cause  of  action  can  not  be  stated  very  much  dif- 
ferently from  what  it  has  heretofore  been  stated.  Where  the  facta 
and  the  law  are  the  same,  the  cause  of  action  must  be  stated  sub- 
stantially in  the  same  form ;  and  hence  a  new  classification  will 
gradually  grow  up  under  the  code,  as  it  grew  up  under  the  com- 
mon law,  but  not  with  the  same  rigidity ;  since  under  the  code, 
classification  will  be  a  mere  matter  of  convenience,  and  not  a  law 
of  necessity ;  so  that  an  action  may  be  amended  from  the  one  class 
into  another,  according  to  the  nature  of  the  case  itself,  as  developed 
in  court. 

The  view  here  taken  of  this  code  is  sustained  by  the  rulings  of 
the  court.  In  Cole  v.  Reynolds,  18  N.  Y.  74,  Harris,  J.,  says  :  "By 
the  code,  the  distinctions  between  actions  at  law  and  suits  in  equity 
is  abolished.  The  course  of  proceeding  in  both  classes  of  cases  is 
now  the  same.  Whether  the  action  depends  upon  legal  principles- 
or  equitable,  it  is  still  a  civil  action,  to  be  commenced  and  prose- 
cuted without  reference  to  this  distinction. 

"  But,  while  this  is  so  with  reference  to  the  form  and  course  of 
proceeding  in  the  action,  the  principles  by  which  the  rights  of  the 
parties  are  to  be  determined,  remain  unchanged.  The  code  has 
given  no  new  cause  of  action.  In  some  cases,  parties  are  allowed 
to  maintain  an  action  who  could  not  have  maintained  it  before ; 
but  in  no  case  can  such  an  action  be  maintained  where  no  action 
at  all  could  have  been  maintained  before  upon  the  same  state  of 
facts.  If,  under  the  former  system,  a  given  state  of  facts  would 
have  entitled  a  party  to  a  decree  in  equity  in  his  favor,  the  same 
state  of  facts  now,  in  an  action  prosecuted  in  a  manner  prescribed 
by  the  code,  will  entitle  him  to  a  judgment  to  the  same  effect.  If 
the  facts  are  such  as  that,  at  the  common  law,  the  party  would 
have  been  entitled  to  judgment,  he  will,  by  proceeding  as  the  code 
requires,  obtain  the  same  judgment.  The  question,  therefore,  is, 
whether,  in  the  case  now  under  consideration,  the  facts,  as  they  are 
assumed  to  be,  would,  before  the  adoption  of  the  code,  have  sus- 
tained an  action  at  law,  or  a  suit  in  equity." 

This  view  of  the  code  is  ihe  one  generally  taken.  Bights  are 
neither  changed  nor  created  by  the  code.  What  was  an  action  at 
law  before  the  code  is  still  an  action  founded  on  legal  principles  ; 
and  what  was  a  bill  in  equity  before  the  code,  is  still  a  civil  action, 
founded  on  principles  of  equity;  what  state  of  facts  ended  before 
the  code  in  a  decree  in  equity,  must  still  end  in  what  is  now  called 
a  judgment,  but  which  is  in  fact  a  decree  in  equity.     There  is 


FORM    OP   CIVIL   ACTION. 


nothing  in  the  code  converting  equitable  rights  into  legal.  What 
was  an  equitable  right  before  the  code  is  an  equitable  right  still;  and 
the  same  result  is  to  be  sought  and  obtained  in  a  civil  action  under 
the  code  as  was  formerly  obtained  under  a  bill  in  equity ;  and  the 
same  judgment  on  the  same  facts  is  now  to  be  obtained  under  the 
name  of  a  civil  action,  as  was  formerly  obtained  by  the  various 
forms  of  action  then  recognized.  They  are  all  special  actions  on 
the  peculiar  facts  presented  in  each  case ;  but  the  distinction  be- 
tween law  and  equity  is  still  kept  up  from  necessity.  There  is  a 
radical  difference  between  the  two  classess  of  rights  and  remedies, 
and  they  can  not,  in  the  nature  of  things,  be  confounded  the  one 
with  the  other.  Petition  and  the  proceedings  in  actions  at  law  are 
radically  different  from  a  petition  founded  on  equitable  principles ; 
nor  can  it  be  otherwise,  legislate  as  we  may.  Legislation  can  not 
change  the  nature  of  things ;  and  it  is  the  part  of  wisdom  to  recog- 
nize and  acknowledge  this  iron  inflexibility  of  facts  and  principles. 

Sec.  4.  In  such  action,  the  party  complaining  shall  be  known  as 
the  plaintiff,  and  the  adverse  party  as  defendant. 

Sec.  5.  There  can  be  no  feigned  issues ;  but  a  question  of  fact  not 
put  in  issue  by  the  pleadings  may  be  tried  by  a  jury,  upon  an  order 
for  the  trial,  stating  distinctly  and  plainly  the  question  of  fact  to 
be  tried,  and  such  order  is  the  only  authority  necessary  for  a  trial. 


Feigned  issues  were  never  in  practice  in  Ohio.  Courts  were  in 
the  habit,  in  chancery  cases,  of  submitting  some  question  of  fact 
arising  in  a  case  to  a  jury,  and  this  was  done  under  a  simple  order 
of  the  court.  The  code  sanctions  this  practice,  and  it  is  a  very 
convenient  one.  Of  course  it  applies  only  to  cases  of  an  equitable 
nature,  since,  in  all  others,  the  parties  are  entitled  to  demand  a 
jury  trial. 


TIME   OF    COMMENCING    CIVIL  ACTIONS. 


CHAPTER  III. 


TIME  OF  COMMENCING  CIVIL  ACTIONS. 

I.  Actions  in  General. 

Sec.  6.  This  title  shall  not  apply  to  actions  already  commenced, 
or  to  cases  where  the  right  of  action  has  already  accrued  ;  but  the 
statutes  now  in  force  shall  be  applicable  to  such  cases,  according 
to  the  subject  of  the  action,  and  without  regard  to  the  form;  nor 
shall  this  title  apply  in  the  case  of  a  continuing  and  subsisting 
trust,  or  to  an  action  by  a  vendee  of  real  property,  in  possession 
thereof,  to  obtain  a  conveyance  of  it. 

Sec.  7.  The  act  entitled  "  an  act  for  the  limitation  of  actions," 
passed  February  eighteenth,  one  thousand  eight  hundred  and 
thirty-one ;  the  one  hundred  and  sixtieth  section  of  "an  act  to 
provide  for  the  settlement  of  the  estates  of  deceased  persons," 
passed  March  twenty -third,  one  thousand  eight  hundred  and  forty ; 
and  the  second  section  of  "  an  act  to  give  additional  security  to 
land  titles  in  this  State,"  passed  March  twenty-second,  one  thou- 
sand eight  hundred  and  forty-nine,  are  hereby  repealed. 

Sec.  8.  Civil  actions  can  only  be  commenced  within  the  periods 
prescribed  in  this  title,  after  the  cause  of  action  shall  have  ac- 
crued ;  but  where,  in  special  cases,  a  different  limitation  is  pre- 
scribed by  statute,  the  action  may  be  commenced  accordingly. 

II.  Action  for  the  Recovery  of  Ileal  Property. 

Sec.  9.  An  action  for  the  recovery  of  the  title  or  possession  of 
lands,  tenements,  or  hereditaments,  can  only  be  brought  within 
twenty-one  years  after  the  cause  of  such  action  shall  have  accrued. 

Sec.  10.  If  a  person  entitled  to  commence  any  action  for  the  re- 
covery of  the  title  or  j)ossession  of  any  lands,  tenements,  or  heredi- 
taments, be,  at  the  time  his  right  or  title  shall  first  descend  or  ac- 
crue, within  the  age  of  twenty-one  years,  a  married  woman,  insane, 
or  imprisoned,  every  such  person  may,  after  the  expiration  of 
twenty-one  years  from  the  time  his  right  or  title  first  descended  or 
accrued,  bring  such  action  within  ten  years  after  such  disability  is 
removed,  and  at  no  time  thereafter. 

Sec.  11.  An  action  for  the  forcible  entry  and  detention,  or  forci- 


TIME    OF    COMMENCING    CIVIL    ACTIONS. 


ble  detention  only,  of  real  property,  can  only  be  brought  within 
two  years  after  the  cause  of  such  action  shall  have  accrued. 


There  have  been  some  decisions  under  these  sections  relating  to 
real  estate.  In  Lane  v.  Kennedy,  13  Ohio  St.  42,  the  court  held  in 
conformity  to  the  case  of  Fox  v.  Harte,  11  Ohio,  414,  that,  if  the 
owner  of  lands  adjoining  a  public  highway,  regularly  laid  out  and 
used  by  the  public,  extended  his  fence  so  as  to  inclose  a  portion  of 
the  grounds  within  the  surveyed  lines  of  the  highway,  which  por- 
tion was  not  then  used  nor  required  for  the  public  travel,  and  kept 
up  said  fences  without  any  objection  for  upward  of  twenty-one  years, 
he  did  not  acquire  a  title  by  the  statute  of  limitations,  since  the  pos- 
session was  not  necessarily  adverse,  the  public  then  having  no  use 
for  that  part  so  inclosed.  This  decision  does  not  decide  that  there 
may  not  be  an  adverse  possession  against  the  public.  Where  a  man 
builds  his  house  on  what  was  treated  as  a  line  of  a  street  or  high- 
way, that  is  surely  such  an  act  as  would  be  adverse  to  the  public 
right,  and  the  statute  would  run.  The  case  of  Cincinnati  v.  Piatt 
Evans,  5  Ohio  St.  594,  holds  that  in  such  a  state  of  facts  the  statute 
would  run,  as  was  held  in  Cincinnati  v.  Presbyterian  Church,  8 
Ohio,  298. 

In  the  case  of  Yetzer  v.  Thoman,  17  Ohio  St.  130,  the  court  held 
that,  where  adjoining  proprietors  hold  by  open,  notorious,  and  con- 
tinuous possession  for  twenty-one  years,  up  to  a  certain  line,  which 
turns  out  not  to  be  the  true  line,  the  parties  each  acquire  title  to 
the  land  up  to  the  line  so  occupied  by  each  respectively. 

III.  Actions  other  than  for  the  Recovery  of  Real  Property. 

Sec.  12.  Civil  actions  other  than  for  the  recovery  of  real  prop- 
erty, can  only  be  brought  within  the  following  periods  after  the 
cause  of  action  shall  have  accrued. 

Sec.  13.   Within  fifteen  years. 

An  action  upon  a  specialty,  or  any  agreement,  contract,  or 
promise  in  writing. 


In  the  case  of  Bobo  v.  Norton,  10  Ohio  St.  514,  the  court  held 
that  a  recognizance  for  the  stay  of  an  execution  on  a  judgment 
before  a  justice  of  the  peace  was  a  specialty,  and  therefore  barred 
by  fifteen  years  under  section  13  of  the  code;  so  that  an  action 
of  debt  in  III  is  Si  ah',  upon  a  judgment  rendered  in  the  State  of  In- 
diana by  a  justice  of  the  peace,  is  a  specialty,  and  barred  in  fifteen 
years  under  section  13  of  the  code.     Stockwell  v.  Coleman,  10  Ohio 


TIME   OF    COMMENCING   CIVIL   ACTIONS. 


St.  33.  But  in  the  case  of  Tyler's  Ex'r  v.  Winslow,  15  Ohio  St. 
364,  the  same  court  held  that  a  judgment  of  a  court  of  this  State 
is  not  a  specialty,  and  the  statute  of  limitations  does  not  apply  to 
such  a  judgment.  The  court  say  that  in  the  case  of  Stockwell  v. 
Coleman,  10  Ohio  St.  33,  it  was  held  that  a  judgment  of  a  court 
of  another  State  is  to  he  regarded  as  a  specialty  under  the  statute 
of  limitations  of  this  State.  But  is  a  judgment  of  a  court  of  this 
State  a  specialty  within  the  meaning  of  this  statute?  There  is  a 
wide  difference  between  the  legal  significance  and  effect  of  a  do- 
mestic judgment  and  that  of  the  judgment  of  another  State.  This 
court,  however,  is  of  opinion  that  the  judgments  of  the  courts  of 
thiB  State  are  not  subject  to  any  of  the  provisions  of  the  section 
under  consideration. 

The  court  seems  to  overlook  one  fact.  It  says  no  action  accrues 
on  the  rendition  of  a  judgment.  Is  this  true?  Can  not  an  action 
of  debt  be  maintained  on  a  judgment?  There  are  two  remedies 
on  a  judgment:  one  by  execution  or  one  by  action.  Now,  his 
right  to  the  action  accrues  as  soon  as  the  judgment  is  perfected. 
If  the  party  resorts  to  an  action,  his  right  is  to  be  tried  as  in  any 
other  case.  When  had  he  a  right  to  bring  the  action?  So  soon 
as  that  right  exists,  the  statute  begins  to  run,  and  that  right  ac- 
crues from  the  completion  of  the  judgment,  from  the  time  the  court 
rises,  for  then  the  judgment  is  complete.  There  is  the  same 
reason  to  bar  an  action  in  this  case  as  in  any  other.  Nor  has  this 
anything  to  do  with  his  remedy  by  execution  ;  that  depends  upon 
an  entirely  different  state  of  facts. 

Sec  14.   Within  six  years. 

An  action  upon  a  contract  not  in  writing,  express  or  implied. 
An  action  upon  a  liability  created  by  statute,  other  than  a  for- 
feiture or  penalty. 


In  the  case  of  Neilson  &  Churchill  v.  Fry,  16  Ohio  St.  552,  the 
court  held  that  the  right  of  subrogation  by  a  surety  to  a  judgment, 
who  had  paid  it  off,  was  limited  to  six  years,  as  his  legal  action  for 
money  paid  was  barred  in  that  time.  In  other  words,  the  party 
seeking  subrogation  is  seeking  the  aid  of  a  court  of  equity  to 
enforce  the  collection  of  a  legal  claim,  and  if  there  is  no  legal  debt 
or  claim  to  be  paid,  there  can  be  no  right  to  the  aid  of  the  court 
in  the  collection  of  a  debt  which  no  longer  exists.  The  same  doc- 
trine was  asserted  and  enforced  in  Pennsylvania,  in  cases  of  Bit- 
tenhouse  v.  Levering,  6  Watts  &  Serg.  190,  and  of  Fink  v.  Mahaf- 


TIME   OP   COMMENCING   CIVIL   ACTIONS. 


fey,  8  Watts,  384.  The  error,  say  the  court,  on  this  head,  arises 
from  the  assumption  that,  ipso  facto,  on  payment  of  the  money  the 
surety  is  subrogated  to  the  rights  of  the  creditor ;  whereas,  the 
remedy  is  not  prima  facie  on  the  bond,  but  for  money  paid,  al- 
though the  surety  may,  if  he  choose,  invoke  the  aid  of  the  equita- 
ble principle  of  subrogation. 

The  principle  is  the  same  in  all  cases~  where  the  aid  of  a  court 
of  equity  is  invoked  to  enforce  a  legal  right  or  the  collection  of  a 
legal  debt.  If  the  legal  right  is  barred  by  the  statute,  equity  fol- 
lows the  law  and  declines  to  interfere.  If  there  is  no  legal  right, 
no  equitable  right  can  be  set  up.  The  statute  of  limitations  is  a 
bar  in  equity  as  well  as  at  law.  36  Penn.  St.  77,  Pittsburg  E.  K. 
Co.  v.  Graham.  The  rule  is  thus  stated  by  Smith,  J.,  in  Eundle  v. 
Allison,  34  N.  Y.  180,  182 :  "  The  rule  is,  that  where  there  is  a 
legal  and  equitable  remedy  in  respect  to  the  same  subject-matter, 
the  latter  is  under  the  control  of  the  same  statute  bar  with  the  for- 
mer." 7  Johns.  Ch.  90  ;  7  Paige,  195  ;  S.  C,  affirmed  24  Wendell, 
587  ;  15  N.  T.  505.  In  the  case  where  a  surety  pays  money  for  his 
principle,  he  has  a  legal  remedy  in  an  action  for  money  paid;  and 
when  this  remedy  at  law  is  barred,  so  are  all  remedies  in  equity 
for  the  collection  of  the  same  debt.  This  question  was  much  dis- 
cussed in  the  case  of  Borst  v.  Corey,  15  N.  Y.  505. 

This  was  an  action  seeking  to  enforce  a  vendor's  lien  on  the  land 
sold  for  the  purchase  money,  and  the  objection  was  interposed  that 
the  action  at  law  for  land  sold  was  barred  by  the  six-year  clause 
of  the  statute,  there  being  no  written  agreement  to  pay.  The  court 
held  that  an  action  to  enforce  the  equitable  lien  for  purchase  money 
of  land  was  barred  by  the  lapse  of  six  years  after  the  debt  accrued. 
Bowen,  J.,  thus  states  the  law  in  the  opinion  of  the  court:  "An 
action  at  law,  if  commenced  at  any  time  within  six  years  after  the 
conveyance,  could  have  been  maintained  against  the  defendant 
Corey,  in  which  a  judgment  against  him  personally  would  have 
been  rendered.  The  object  of  such  an  action,  and  the  relief  sought 
for  therein,  would  have  been  the  recovery  of  the  unpaid  purchase 
price  of  the  land.  The  same  relief,  and  no  other  or  different,  is 
sought  to  be  obtained  in  this  action;  and  a  court  of  equity  was  re- 
sorted to  solely  for  the  reason  that  courts  of  common-law  jurisdic- 
tion could  not  award  relief  otherwise  than  by  a  judgment  against 
the  defendant  personally.  The  same  facts,  which  would  constitute 
a  defense  to  the  action  at  law,  would  also  be  a  defense  to  this  action, 
unless  the  statute  of  limitations  be  an  exception. 

"Prior  to  the  revised  statutes,  there  was  no  statute  in  this  State 


10  TIME    OP    COMMENCING   CIVIL   ACTIONS. 


limiting  the  time  of  commencing  actions  in  courts  of  equity.  Yet 
previously  to  the  adoption  of  those  statutes,  it  was  frequently  held 
that,  in  cases  where  there  was  a  concurrent  jurisdiction  at  law  and 
in  tM|uit3r,  time  was  as  absolute  a  defense  to  the  action  in  equity  as  to 
one  at  law — not  on  the  ground  of  expediency,  or  as  a  matter  of 
discretion  founded  on  analogy  to  the  statute  of  limitations,  as  was 
the  case  in  some  actions  of  purely  equitable  cognizance,  but  in 
obedience  to  the  statute  of  Roosevelt  v.  Mark,  G  Johns.  Ch.  266 ; 
Kane  v.  Bloodgood,  7  lb.  90;  Murray  v.  Coster,  20  Johns.  576; 
Sawyer  v.  De  Meyer,  2  Paige,  574 ;  Humber  v.  Trinity  Church,  7 
lb.  195;  24  Wend.  587;  Story's  Eq.,  sec.  529. 

"  I  think  this  case  comes  within  the  principle  established  by  the 
above  authorities,  and  that,  independently  of  the  statutory  provis- 
ion limiting  the  time  of  commencing  actions  in  courts  of  equity,  it 
should  be  held  that  the  six  years'  limitation  of  actions  at  law  con- 
stitutes a  defense  to  this  action.  The  provision  of  the  revised 
statutes,  limiting  the  time  of  commencing  actions  in  courts  of 
equity,  was  adopted  as  declaratory  of  the  law  as  it  then  existed, 
and  not  as  introducing  a  new  rule. 

"It  would  be  an  anomaly  if  the  plaintiff  could  recover  his  debt 
by  an  action  to  enforce  the  lien  given  to  secure  the  debt,  when  no 
action  could  be  sustained  to  recover  the  debt  directly  without  refer- 
ence to  the  lien.  There  is  no  reason  why  the  limitation  should  be 
applicable  in  the  one  case  and  not  in  the  other. 

"But  there  is  a  material  distinction  between  a  mortgage  and  the 
equitable  lien  for  the  purchase  money  of  land  given  by  law,  and 
also  between  an  action  to  foreclose  a  mortgage  and  one  to  enforce 
such  a  lien.  The  action  to  foreclose  a  mortgage  is  brought  upon  an 
instrument  under  seal,  which  acknowledges  the  existence  of  the 
debt  to  secure  which  the  mortgage  is  given  ;  and  hy  reason  of  the 
seal,  the  debt  is  not  presumed  to  have  been  paid  until  the  expira- 
tion of  twenty  years  alter  it  becomes  due  and  payable.  The  six 
years  limitation  has  no  application  to  a  mortgage.  In  fact,  all  in- 
struments under  seal  are  expressly  excepted  therefrom.  No  action 
at  law  can  be  predicated  upon  the  mortgage  to  collect  the  debt  se- 
cured thereby,  unless  there  is  contained  therein  a  covenant  to  pay 
the  debt.  A  debt  secured  by  deed  is  said  to  be  of  a  higher  na- 
ture than  one  by  simple  contract.  On  the  contrary,  the  equita- 
ble lien  is  neither  created  nor  evidenced  by  deed,  but  arises  by 
operation  of  law,  and  is  of  no  higher  nature  than  the  debt  which 
it  secures.  It  must  co-exist  with  the  debt  and  can  not  survive  it." 
Vide  Littlejohn  v.  Cordon,  32  Miss.  235,  S.  P. 


TIME   OF    COMMENCING   CIVIL    ACTIONS.  11 


The  same  language  is  applicable  to  the  right  of  subrogation.  It 
is  neither  created  nor  evidenced  by  deed  or  other  writing,  but  arises 
by  operation  of  law,  and  can,  therefore,  be  of  no  higher  nature  than 
the  debt  which  it  secures.  It  is  an  action  upon  a  contract  not  in 
writing  implied  by  law.  Such  is  the  relation  of  principal  and 
surety  when  the  surety  has  paid  the  debt,  The  law  implies  a 
promise  on  the  part  of  the  principal  to  repay  the  surety  the  money 
so  paid  by  him  for  his  principal.  This  is  a  cause  of  action  coming 
expressly  within  the  words  of  section  14.  Section  18  provides 
only  for  cases  not  therein  before  provided  for ;  but  money  paid 
has  been  therein  before  provided  for,  and  limited  to  six  years. 
If  this  is  not  the  construction,  then  there  is  a  double  limita- 
tion for  a  certain  class  of  cases,  which  the  statute  takes  special 
care  to  avoid  by  the  language  of  section  18.  There  is  now  no  dis- 
tinction between  law  and  equity ;  both  come  within  the  words  of 
the  statute,  and  it  would  be  strange,  if  under  such  a  statute,  the 
plaintiff  could  by  simply  changing  the  form  of  his  petition  secure 
for  his  cause  a  six  or  ten  years'  limitation. 

Our  courts  have  asserted  the  same  doctrine.  In  the  case  of 
Larrowe  v.  Beam,  10  Ohio.  498,  Grimke,  J.,  says:  "  The  court  act 
in  obedience  to  the  statute  when,  if  the  claim  were  asserted  at  law, 
the  statute  would  afford  the  rule.  ...  If  there  is  a  statute  of 
limitations  in  force,  a  court  of  equity  acts  not  merely  in  analogy  to 
it,  but  in  strict  obedience  to  its  provisions."  The  same  doctrine  is 
re-asserted  in  the  case  of  Horton  v.  Horner,  14  Ohio,  437,  Hitch- 
cock, J. :  "As  a  defense  the  defendant  sets  up  the  statute  of  limita- 
tions both  of  the  States  of  New  York  and  Ohio.  Courts  of  chan- 
cery regard  such  statutes  as  much  as  courts  of  law ;  for  if  they  do 
not,  still  a  claim,  which  would  be  barred  at  law,  must,  if  prosecuted 
in  chancery,  be  governed  by  the  same  rule."  Vide  also  13  Ohio, 
452  ;  Ormsby  v.  Longworth,  11  Ohio  St.  G67. 

In  Elmendorf  v.  Tajdor,  10  Wheaton,  152,  it  is  said  that  although 
the  statutes  of  limitations  do  not  properly  extend  to  suits  in  chan- 
cery, yet  the  courts  universally  acknowledged  their  obligation. 

The  same  doctrine  is  maintained  in  the  following  cases  :  Smith 
v.  Eemington,  42  Barb.  (1ST.  Y.)  75,  applied  to  a  suit  to  collect  a 
Legacy;  Grattan  v.  Wiggins,  23  Cal.  16;  Bank  of  Gettysburg  /\ 
Thompson,  3  Grant,  (Penn.)  114;  Harris  v.  Mills.  28  111.  44;  Albro 
r,  Dayton,  28  111.325;  Taylor  v.  McMurry,  5  Jones'  Eq.  (K  C.) 
357;  Leggett  v.  Coffield,  lb.  382.  An  action  to  annul  a  convey- 
ance and  recover  back  the  consideration  paid  for  a  mistake  as  to 
the  quantity  of  the  property  conveyed,  is  subject  to  the  same  lim- 


12  TIME   OF   COMMENCING   CIVIL   ACTIONS. 

itation  as  an  action  at  law  to  recover  back  the  money.  Smith  v. 
Fly,  24  Texas,  345 ;  Knight  v.  Bowner,  14  Md.  1 ;  Wright  v.  Le- 
claire,  3  Clarke  (Iowa),  221  ;  Wilson  v.  Anthony,  19  Ark.  16 ; 
Brooks  v.  South  Car.  E.  E.  Co.,  8  Eich's  Eq.  (S.  C.)  30.  In  all  cases 
of  concurrent  jurisdiction  between  courts  of  law  and  equity,  the 
statute  of  limitations  is  equally  obligatory  in  each  court.  Teakle 
v.  Gibson,  8  Md.  70 ;  Manning  v.  Warren,  17  111.  267 ;  Finney  v. 
Harris,  30  Miss.  (1  George,)  36 ;  Sugg  v.  Thrasher,  30  Miss.  135 ; 
Manchester  v.  Mathewson,  3  E.  I.  237 ;  Hamilton  v.  Hamilton,  18 
Penn.  St.  20 ;  Sidam  v.  Williams,  4  McLean,  31 ;  Lindall  v.  Camp- 
bell, 6  Gill,  430  ;  Dudley  v.  Price,  10  B.  Mon.  84 ;  Phalen  v.  Clark, 
19  Conn.  421 ;  Perkins  v.  Cartmill,  4  Harring.  270 ;  Wagstoff  v. 
Smith,  4  Iredell's  Eq.  1 ;  Lex.  &  Ohio  E.  E.  Co.  v.  Bridges,  7  B. 
Mon.  556 ;  Pratt  v.  Northam,  5  Mason,  95 ;  Beerdell  v.  Grew,  8 
Pick.  108 ;  Farnam  v.  Brooks,  9  Pick.  212  ;  Burdoin  v.  Shelton,  10 
Yerg.  41 ;  5  Blackf.  506 ;  2  Gill  &  Johns.  307  ;  Bank  United  States 
v.  Daniel,  12  Pet.  32 ;  7  Yerger,  9 ;  27  Miss.  772. 

The  right  to  subrogation  does  not  depend  on  contract,  but  rests 
on  principles  of  justice  and  equity.     1  N.  Y.  595. 

These  authorities  show  that  the  law  is  well  settled  that  when 
there  is  a  legal  debt  for  the  collection  of  which  two  remedies  exist, 
one  at  law  and  one  at  equity,  if  the  remedy  at  law  is  barred,  so  is 
the  remedy  in  equity.  The  right  reason  for  the  rule  may  not 
always  be  given,  but  the  correct  rule  is  everywhere  recognized. 
The  true  reason  of  the  rule  grows  out  of  the  character  of  the  juris- 
diction of  a  court  of  equity.  It  is  of  a  twofold  character :  it  is  in 
aid  of  a  legal  right  in  the  one  class,  and  in  the  enforcement  of 
rights  purely  equitable,  of  which  a  court  of  law  took  no  jurisdic- 
tion. In  the  former  case,  if  there  is  no  legal  right  existing,  there 
is  no  debt  or  claim  for  the  enforcement  of  which  the  aid  of  a  court 
of  equity  can  be  invoked.  In  these  cases  equity  furnishes,  not  a 
right,  but  a  remedy  for  a  right  existing  at  law,  which  remedy  a  court 
of  law  can  not  furnish.  What  equity  does,  is  to  furnish  an 
equitable  remedy  for  a  legal  right ;  but  if  there  is  no  legal  right, 
no  ground  is  laid  for  the  remedy  afforded  in  equity  in  aid  of  legal 
rights.  In  the  other  class  of  cases,  of  which  a  court  of  law  never 
had  jurisdiction,  the  statute  never  did  apply.  In  this  class  equity 
creates  both  the  right  and  the  remedy.  Of  these  questions  courts 
of  law  never  did  recognize  the  right.  Here  lies  the  distinction. 
The  remedy  on  a  mortgage  in  ejectment  was  barred  in  twenty-one 
years,  and  hence  a  court  of  equity  would  not  foreclose  the  mort- 
gage after  that  lapse  of  time.     This  distinction  will  reconcile  all 


TIME   OP   COMMENCING    CIVIL    ACTIONS.  13 

the  cases,  and  harmonize  what  at  first  may  seem  conflicting  in  the 
decisions. 

Sec.  15.   Within  four  years. 

An  action  for  trespass  upon  real  property. 

An  action  for  taking,  detaining,  or  injuring  personal  property, 
including  actions  for  the  specific  recovery  of  personal  property, 
provided  that  in  an  action  for  the  wrongful  taking  of  personal 
property,  the  cause  of  action  shall  not  be  deemed  to  have  accrued 
until  the  discovery  of  the  wrong-doer. 

An  action  for  an  injury  to  the  rights  of  the  plaintiff,  not  arising 
on  contract,  and  not  hereinafter  enumerated. 

An  action  for  relief  on  the  ground  of  fraud.  The  cause  of  ac- 
tion in  such  ease  shall  not  be  deemed  to  have  accrued  until  the 
discovery  of  the  fraud. 

Prior  to  this  amendment  the  wrongful  taking  of  goods  was  barred 
in  four  years,  though  the  taking  was  larceny  and  the  taker  con- 
cealed his  guilt.     How  v.  Minnich,  19  Ohio  St.  462. 

As  to  cases  of  fraud,  vide  Foote  v.  Farrington,  41  N.  Y.  164. 

Sec.  16.    Within  one 'year. 

An  action  for  libel,  slander,  assault,  battery,  malicious  prosecu- 
tion, or  false  imprisonment. 

An  action  upon  a  statute  for  a  penalty  or  forfeiture ;  but  where 
the  statute  giving  such  action,  prescribes  a  different  limitation,  the 
action  may  be  brought  within  the  period  so  limited. 

Sec.  17.  An  action  upon  the  official  bond  or  undertaking  of  an 
executor,  administrator,  guardian,  sheriff,  or  any  other  officer ;  or 
upon  the  bond  or  undertaking  given  in  attachment,  injunction, 
arrest,  or  in  any  case  whatever  required  by  statute,  can  only  be 
"brought  within  ten  years  after  the  cause  of  action  shall  have  ac- 
crued; but  this  section  shall  be  subject  to  the  qualification  in  sec- 
tion 8. 


In  King  v.  Nichols  et  al.,  16  Ohio  St.  80,  it  was  held  that  an  ac- 
tion against  a  sheriff  on  his  bond  for  a  breach  was  limited  by  ten 
years. 

Did  not  the  court  lose  sight  of  one  thing?  "Was  it  not  limited 
by  the  law,  which  would  bar  an  action  against  the  sheriff  alone? 
His  bond  is  a  security  for  ten  years  for  all  actions  that  could  be 
prosecuted  personally  against  the  sheriff;  but  bail  or  sureties  are 
not  bound  at  any  rate  over  ten  years.     An  action  for  money  had 


14  TIME    OF   COMMENCING    CIVIL    ACTIONS. 


and  received  would  lie  against  a  sheriff,  and  that  is  barred  in  six 
years.  An  action  tor  an  injury  to  the  rights  of  plaintiff  would  em- 
brace ;i  false  return,  a  failure  to  levy,  etc.,  and  is  barred  in  four 
years.  Such  were  the  rulings  under  prior  statutes,  and  it  would  be 
si  range  to  extend  a  sheriff's  liability  to  ten  years,  when  heretofore 
it  was  limited  to  one.  Such  a  construction  was  wrong  to  sheriff 
and  his  sureties.  It  was  so  decided  in  State  v.  Blake,  2  Ohio  St.  147, 
and  also  in  the  case  of  The  State  v.  Newman,  2  Ohio  St.  567. 
When  a  sheriff  has  received  money  as  such,  and  refused  to  pay  it 
over  on  demand,  he  may  be  sued  in  tort,  and  then  the  action  would 
be  barred  in  one  year,  and  the  tort  being  waived,  he  may  be  sued  in 
assumpsit  for  money  had  and  received,  and  then  the  action 
would  be  barred  in  six  yeai-s.  lb.  I  can  see  no  reason  in  the  code 
to  change  this  rule  of  construction.  While  the  one-year  limitation 
is  left  out,  his  wrongful  neglect  as  an  officer  comes  clearly  within  sec- 
tion 15  of  the  present  act,  fixing  the  limitation  at  four  years.  Be- 
fore the  code  there  was  no  limitation  on  an  official  bond ;  nor  can 
I  see  in  section  17  any  other  object  than  that  to  protect  sureties  by 
limiting  any  action  on  an  official  bond  to  ten  years.  It  is  mon- 
strous to  extend  the  limitation  of  actions  against  officers  from  one 
to  ten  years,  when  the  other  provisions  of  the  statute  apply  to 
officers  as  well  as  to  other  persons. 

'  In  the  case  of  Ohio  v.  Orr  et  al.,  10  Ohio  St.  522,  it  was  held 
that  the  limitation  in  favor  of  fees  received  by  him  and  not  paid 
over  to  county  treasurer  was  ten  years  under  section  17,  and  not 
four  years  under  section  14. 

In  New  York,  in  the  case  of  Bruce  v.  Tilson,  25  K  Y.  194,  it 
was  held  that  an  action  for  specific  performance  of  a  contract  to 
convey  land  was  limited  by  ten  years,  by  a  section  similar  to  sec- 
tion 17  of  the  code. 

Sec.  18.  An  action  for  relief,  not  hereinbefore  provided  for,  can 
only  be  brought  within  ten  years  alter  the  cause  of  action  shall 
have  accrued. 

Sec.  19.  If  a  person,  entitled  to  bring  any  action  mentioned  in 
this  chapter,  except  for  a  penalty,  or  forfeiture,  be,  at  the  time  the 
cause  of  action  accrued,  within  the  age  of  twenty -one  years,  a 
married  woman,  insane,  or  imprisoned,  every  such  person  shall  be 
entitled  to  bring  such  action  within  the  respective  times  limited  by 
this  chapter,  after  such  disability  shall  be  removed. 


TIME   OP    COMMENCING   CIVIL    ACTIONS.  15 

VI.   General  Provisions. 

Sec.  20.  An  action  shall  be  deemed  commenced  within  the  mean- 
ing of  this  title,  as  to  each  defendant,  at  the  date  of  the  summons 
which  is  served  on  him,  or  on  a  co-defendant  who  is  a  joint  con- 
tractor, or  otherwise  united  in  interest  with  him:  where  service  by 
publication  is  proper,  the  action  shall  be  deemed  commenced  at  the 
date  of  the  first  publication,  which  publication  must  be  regularly 
made. 


This  section  applies  to  the  commencement  of  a  petition  in  error. 
It  is  not  commenced  by  mere  filing  of  petition.  The  rule  as  to 
when  it  is  commenced  is  found  in  this  section.  Eobinson  v.  Orr, 
1G  Ohio  St.  284. 

An  attempt  to  commence  an  action  shall  be  deemed  equivalent 
to  the  commencement  thereof,  within  the  meaning  of  this  title, 
when  the  party  faithfully,  properly,  and  diligently  endeavors  to 
procure  a  service ;  but  such  attempt  must  be  followed  by  service 
within  sixty  days. 

Sec.  21.  If,  when  a  cause  of  action  accrues  against  a  person,  he 
be  out  of  the  State,  or  have  absconded  or  concealed  himself,  the 
period  limited  for  the  commencement  of  the  action  shall  not  begin 
to  run  until  he  comes  into  the  State,  or  while  he  is  so  absconded  or 
concealed;  and  if  after  the  cause  of  action  accrues,  he  depart  from 
the  State,  or  abscond,  or  conceal  himself,  the  time  of  his  absence 
or  concealment  shall  not  be  computed  as  any  part  of  the  period 
within  which  the  action  must  be  brought, 


The  code  of  New  York  has  a  provision  nearly  identical  with 
this  section  21.  In  the  case  of  Cole  v.  Jessup,  10  IS".  Y.  9G,  the 
Court  of  Appeals  of  that  State  held  that  under  that  section  it  is 
sufficient  for  the  defendant,  in  averring  his  return  to  the  State,  to 
allege  that  he  'returns  publicly  to  this  State,"  without  showing 
the  circumstances  of  such  return,  or  that  the  plaintiff  had  notice 
of  it.  The  court  also  held  this  statute  to  apply  to  a  person  re- 
siding out  of  the  State;  our  statute  expressly  includes  them. 
I'll'!  sr  the  statute  successive  absences  of  the  debtor  from  the  Slate 
may  be  accumulated,  and  their  aggregate  deducted  from  the  period 
of  limitation.  Tilden,  J.,  says,  that  it  having  been  held  in  several 
to  wii  :  Fair  v.  Roberdeau,  3  Cranch,  174;  Fowler  v.  Hunt, 
1!)  Johns.  Hi  I  ;  White  v.  Bailey,  3  Mass.  271  ;  and  Little  r.  Blunt, 
16  Pick.  369 — that  defendant  pleads  a  return  under  the  statute,  he 
is   hound   to    prove  all    the   facts   necessary   to   make   sucli    return 


16  TIME   OF   COMMENCING   CIVIL   ACTIONS. 

effectual;  although  none  of  these  facts  are  expressly  averred,  it  fol- 
lows that  the  plea  can  not  be  defective  for  want  of  such  averment ; 
that  if  the  averment  adds  nothing  to  the  proof  which  the  defend- 
ant is  under  obligation  to  produce,  it  can  not  be  necessary  to  the 
validity  of  the  plea." 

In  the  case  of  Denny  v.  Smith  &  Hall,  18  JST.  Y.  567,  the  same 
court  held  that  the  absence  of  one  joint-debtor  from  this  State  sus- 
pends the  running  of  the  statute  of  limitations  against  him,  al- 
though his  co-debtor  has  remained  within  the  State.  This  decision 
is  based  on  the  proposition  that  the  exemption  of  the  statute  is  a 
personal  privilege,  to  be  taken  advantage  of  alone  by  the  party 
coming  within  its  purview ;  and  this  is  the  true  construction  of  the 
statute. 

Sec.  22.  Where  the  cause  of  action  has  arisen  in  another  State 
or  country  between  non-residents  of  this  State,  and  by  the  laws  of 
the  State  or  country  where  the  cause  of  action  arose,  an  action  can 
not  be  maintained  thereon  by  reason  of  lapse  of  time,  no  action 
can  be  maintained  thereon  in  this  state. 

Sec.  23.  If  an  action  be  commenced  within  due  time,  and  a 
judgment  therein  for  the  plaintiff  be  reversed,  or  if  the  plaintiff 
fail  in  such  action  otherwise  than  upon  the  merits,  and  the  time 
limited  for  the  same  shall  have  expired,  the  plaintiff,  or,  if  he  die, 
and  the  cause  of  action  survive,  his  representatives,  may  com- 
mence a  new  action,  within  one  year  after  such  reversal  or  failure. 

Sec.  24.  In  any  case  founded  on  contract,  when  anj7  part  of  the 
principal  or  interest  shall  have  been  paid,  or  an  acknowledgment 
of  an  existing  liability,  debt,  or  claim,  or  any  promise  to  pay  the 
same,  shall  have  been  made,  an  action  may  be  brought  on  such 
case  within  the  period  prescribed  for  the  same,  after  such  payment, 
acknowledgment,  or  promise ;  but  such  acknowledgment  or  prom- 
ise must  be  in  writing,  signed  by  the  party  to  be  charged  thereby. 


'By  the  act  of  February  9,  1863  (60  Ohio  L.  5),  it  is  provided 
that,  if  a  cause  of  action  shall  have  existed,  or  accrued,  or  shall 
exist  and  accrue,  in  favor  of  or  against  any  person,  who  has  been 
or  shall  be  engaged  during  the  present  war  in  the  military  or 
naval  service  of  the  United  States,  or  of  this  State,  the  time  of 
such  service  shall  not  be  counted  as  a  part  of  the  time  of  limita- 
tion. 

The  language  of  this  section  would  not  affect  nor  can  affect  any 
cause  of  action  barred  at  the  time  the  act  took  effect ;  it  can  only  apply 


TIME   OP   COMMENCING    CIVIL    ACTIONS.  17 

to  causes  of  action  existing  and  not  barred  at  the  date  of  its  pas- 
sage.   No  retroactive  law  can  be  passed  by  our  legislature.     Slipp  v. 
Brown,  2  Carter,  (Ind.)  647 ;  Girder  v.  Stevens,  1  Heiskill,  280 ;  S.  C, 
2  Am.  Eep.  700  ;  2  West.  Law  Journal,  170,  197 ;  Cooley  on  Const. 
Law,   349;    Sedgwick   on  Stat.  177;    Paschal  v.  Perez,  7  Texas, 
348 ;    Johnson  v.   Bund,  1  Humph.   533 ;    State  v.  Scoop,   7  Ind. 
91 ;  Southard  v.  Central  E.  E.  Co.,  2  Dutch.  (K  J.  )  13  ;  Sprccher 
v.  Wakely,  11  Wis.  432  ;  lb.  442  ;  Knox  v.  Cleveland,  13  Wis.  245 
McCarthy  v.  White,  21  Cal.  490 ;  Baldro  v.  Talmie,  1  Oregon,  176 
Price  v.  Hopkins,  13  Mich.  318;  Cooky.  Kendall,  13  Minn.  324 
Lockhart  v.  Yiesser,  2  Bush,  (Ky.)  231 ;  Fish  v.  Briggs,  6  Ehode 
Island,  557;    67  Penn.  St.  499  ;    S.  C,  5  Am.  Eep.  450  ;    106  Muss. 
572  ;    20  Iowa,  356  ;    Wood  v.  Winnock,  3  K  H.  473 ;    4  N.  H.  18 ; 
6  lb.  114 ;  32  lb.  432  ;  33  Maine,  333. 

This  provision  is  in  part  a  new  one  in  Ohio.  A  similar  one  was 
enacted  in  England,  and  known  as  Lord  Tenterden's  case.  9  Geo. 
4,  chap.  14,  sec.  1.  It  has  received  a  construction  in  the  English 
courts,  as  well  as  in  the  courts  of  JS"ew  York.  The  first  case  that  I 
will  refer  to  is  that  of  Turney  v.  Dodwell,  24  Eng.  Law  and  Eq. 
92.  The  action  counted  first  on  a  promissory  note  for  £108  15s., 
dated  May  5,  1843 ;  second,  on  a  bill  of  exchange  for  £30,  drawn 
on  the  15th  April,  1848.  To  the  first  count  the  statute  of  limita- 
tions was  pleaded  and  issue  taken  thereon.  On  trial  the  facts  were 
these  :  The  defendant  being  indebted  to  the  plaintiff,  gave  the  note 
first  declared  on.  In  February,  1848,  the  defendant,  who  had  been 
pressed  to  pay  part  of  the  debt,  drew  the  bill  for  £30  and  deliv- 
ered it  to  the  plaintiff.  The  question  was  raised  whether  the  giv- 
ing of  this  bill  was  a  payment  within  the  meaning  of  the  statute ; 
and  the  court  held  that  it  was.  Lord  Campbell,  C.  J.:  "Before the 
statute  of  9  Geo.  4,  such  a  part  payment  was  clearly  sufficient  to 
take  the  case  out  of  the  statute  of  limitations,  as  amounting  to  an 
acknowledgment  of  the  balance  being  due  ;  and  the  real  question 
is,  whether  such  payment  by  bill,  though  not  received  in  absolute 
satisfaction,  is  not  a  payment  within  the  proviso  in  that  statute. 
The  effect  of  giving  a  bill  of  exchange  on  account  of  a  debt  is  laid 
down  by  Maule,  J.,  in  the  recent  case  of  Belshaw  v.  Bush,  11  Com. 
Pleas,  191 ;  S.  C,  14  Eng.  Com.  Law,  254,  approving  the  doctrine 
of  th<>  common  pleas  in  Griffiths  v.  Owen,  13  M.  &  W.  58,  and  of 
Alderson,  B.,  in  Jones  v.  Williams,  13  Mee.  &  W.  883.  In  all  those 
authorities,  such  a  delivery  of  a  bill  is  laid  down  as  a  conditional 
payment.  We  do  not  see  why  its  immediate  operation,  as  an  ac- 
vol.  i — 2 


18  TIME   OF   COMMENCING   CIVIL   ACTIONS. 

knowledgment  of  the  balance  of  the  demand  being  due,  is  at  all 
affected  by  its  operation  as  a  payment  being  liable  to  be  defeated 
at  a  future  time.  The  statutes  intending  to  make  a  distinction  be- 
tween mere  acknowledgments  byword  of  mouth,  and  acknowledg- 
ments proved  by  the  act  of  payment,  it  surely  can  not  be  material 
whether  such  payment  may  afterward  be  avoided  by  the  thing  paid 
turning  out  to  be  worthless.  The  intention,  and  the  act  by  which 
it  is  evinced,  remains  the  same.  We  think  that  the  word  "pay- 
ment" must  be  taken  to  be  used  by  the  legislature  in  a  popular 
sense,  and  in  a  sense  large  enough  to  include  the  species  of  pay- 
ment in  question;  and  we  should  think  the  acknowledgment  of 
liability  as  to  the  remainder  of  the  debt  not  at  all  altered  by  the 
fact  of  the  notes,  by  which  it  was  paid,  turning  out  to  be  forged,  or 
of  the  coin  turning  out  to  be  counterfeit.  In  all  these  cases,  the 
force  of  the  acknowledgment  is  the  same,  and  the  payment  is,  we 
think,  a  sufficient  payment  within  the  words  of  the  9  Geo.  4."  Mil- 
ford  v.  Duke  of  Argyle,  6  Man.  &  Gr.  40;  Kearslake  v.  Morgan, 
5  T.  E.  678 ;  Bishop  v.  Crowshay,  3  B.  &  Cr.  415. 

In  the  case  of  Marienthal  v.  Mosler,  16  Ohio  St.  566,  the  court 
held  that  a  payment  of  a  dividend  by  the  assignee  of  an  insolvent 
debtor  is  not  such  a  part  payment  as  will,  under  section  24  of  the 
code,  take  the  residue  of  the  debt  out  of  the  statutory  limitation 
as  against  the  debtor.  Bay,  J.,  in  giving  the  opinion  of  the  court, 
says:  "No  change  is  made  in  the  effect  of  a  part  payment  of  a 
debt.  It  will  be  seen,  however,  that  the  same  effect  is  given  to  such 
part  payment  as  is  given  to  "  a  written  promise  signed  by  the  party 
to  be  charged  therewith."  It  would  seem,  therefore,  from  anal- 
ogy, that  the  payment  must  be  made  by  the  party  to  be  affected 
thereby,  or  by  an  agent  authorized  for  that  express  purpose.  In 
contemplation  of  the  statute,  the  part  payment  of  a  debt  is  regarded 
as  a  willingness  and  obligation  to  pay  the  residue,  as  conclusive  as 
would  be  a  personal  written  promise  to  that  effect.  It  could  not, 
then,  have  been  intended  to  give  this  effect  to  payments  other  than 
those  made  by  the  party  himself,  or  under  his  immediate  direction. 
Surely,  nothing  short  of  this  would  warrant  the  assumption  of  a 
willingness  to  pay,  equal  to  a  written  promise  to  that  effect."  Vide 
Stoddard  v.  Boan,  7  Gray,  387. 

In  the  case  of  Bicket  v.  Leonard,  34  N.  Y.  175,  the  same  question 
substantially  was  decided  in  the  same  way.  In  this  case  the  de- 
fendant had  made  a  voluntary  assignment  for  the  benefit  of  credit- 
ors, and  the  payment  was  made  by  the  assignee,  and  the  court 
held  that  such  payment  did  not  take  the  case  out  of  the  statute  of 


TIME   OF   COMMENCING   CIVIL   ACTIONS.  19 

limitations.  Hunt,  J.,  says  :  "  The  decisions  of  this  court  in  Win- 
chell  v.  Hicks,  18  N.  Y.  567;  in  Van  Keuren  v.  Parmele,  2  Cotnst. 
572;  and  Shoemaker  v.  Benedict,  1  Kern.  185,  establish  principles 
which  will  give  great  aid  in  disposing  of  the  present  case.  In 
these  cases,  among  others,  the  following  propositions  are  estab- 
lished : 

1.  That  payments  by  the  debtor  are  evidence  of  an  acknowl- 
edgment of  the  existence  of  the  debt,  and  a  willingness  to  pay  it. 

2.  That  such  payment  must  be  made  by  the  party  who  is  sought 
to  be  charged,  or  by  some  person  acting  by  his  authority. 

3.  That  the  existence  of  a  joint  indebtedness  does  not  constitute 
an  authority  for  one  joint-debtor  so  to  act  in  this  respect  for  the 
other. 

4.  That  where  sureties  requested  their  principal  to  make  a  pay- 
ment, such  payment  bound  them ;  but  that  they  were  not  bound 
unless  it  was  made  by  their  request. 

5.  That  upon  the  dissolution  of  a  copartnership,  one  partner  has 
no  such  authority  as  will  enable  him,  by  a  promise  or  payment,  to 
bind  his  copartner. 

G.  That  whether  such  payment  is  made  before  or  after  the  stat- 
ute has  attached,  is  immaterial. 

Some  light  also  can  be  obtained  from  a  reference  to  the  de- 
cision upon  the  acts  of  assignees  of  insolvents  and  bankrupts  in 
this  country  and  in  England.  Among  such  cases  are  Jackson  v. 
Fairbanks,  2  H.  Bl.  340  ;  Blanchard  v.  Wharton,  1  Barn.  &  Aid. 
220 ;  Boscoe  v.  Hale,  7  Gray,  274 ;  Boosevelt  v.  Mack,  6  Johns.  Ch. 
292  ;  and  Davis  v.  Edwards,  7  Exch.  22.  The  result  of  these  cases 
at  this  time  is  this :  that  the  payment  by  the  assignee  in  bank- 
ruptcy or  insolvency  of  a  part  of  the  debt,  does  not  take  the  case 
out  of  the  statute  of  limitations. 

These  cases  last  cited,  and  the  reasonings  upon  them,  afford  a 
safe  ground  of  decision  in  the  present  case.  They  proceed  upon 
the  basis  that  it  would  be  unreasonable  to  construe  payments  by 
those  who  are  not  parties  to  the  contract,  nor  under  any  personal 
obligation  in  respect  to  them,  but  are  appointed  to  execute  specific 
duties,  as  evidence  of  a  willingness  and  intention  by  the  original 
debtor  to  pay  the  entire  debt ;  that  it  would  be  a  perversion  of  the 
intention  of  the  parties  to  make  the  simple  execution  of  the  trust 
by  the  assignees  the  ground  of  a  new  assumption  of  the  debt  by 
the  debtor. 

A  voluntary  assignment,  like  an  assignment  in  bankruptcy,  or 
under  the  insolvent  laws,  is  made  for  a  single  specific  purpose,  by 


20  TIME   OP   COMMENCING   CIVIL   ACTIONS. 


means  of  the  property  assigned,  to  pay  the  debts  to  which  it  is  ap- 
propriated. It  has  no  other  object  or  intent,  near  or  remote  ;  and 
no  other  idea  can  be  honestly  entertained  by  the  parties.  Even 
for  this  purpose  the  assignee  can  hardly  be  deemed  the  agent  of 
the  assignor,  but  certainly  not  beyond  it.  I  do  not  see  that  he  is 
in  any  respect  more  the  agent  of  the  assignor  than  is  the  assignee 
in  bankruptcy  or  insolvency.  The  one  is  nominated  by  the  debtor 
alone,  the  other  by  the  debtor  and  creditors  ;  but  the  mode  of  ap- 
pointment does  not  decide  the  question  of  power  or  agency.  He 
is  neither  authorized  to  speak  nor  act  for  the  assignor,  nor  is  the 
wish  or  direction  of  that  party  one  which  he  is  bound,  or  would  be 
justified  in  obeying.  His  duty  is  pointed  out  by  law,  and  he  can 
not  protect  himself  in  any  deviation  from  it  by  the  instructions  of 
the  party.     Dunham  v.  Waterman,  17  N.  Y.  9,  18. 

The  acts  of  the  assignee  are  beyond  the  control  of  the  assignor. 
The  assignor  is  not  at  liberty  to  accompany  a  payment,  by  the  as- 
signee, with  qualifications  or  a  disclaimer,  as  when  made  by  him- 
self. Such  payments  are  made  without  his  knowledge  or  assent. 
In  his  own  action,  he  may  make  an  express  disclaimer  of  an  in- 
tention to  make  a  further  promise,  and  limit  the  effect  of  the  pay- 
ment to  the  payment  itself;  while,  on  the  theory  presented,  the 
act  of  his  alleged  agent  is  more  comprehensive,  and  necessarily 
carries  with  it  a  future  obligation.  He  has  no  power  or  oppor- 
tunity to  disclaim,  and  it  would  be  fruitless  to  attempt  it. 

In  McLaren  v.  McMartin,  36  N.  Y.  88,  it  was  held  that  a  demand, 
barred  by  the  statute  of  limitations  before  the  adoption  of  the  code, 
could  not  be  revived  by  a  subsequent  acknowledgment,  unless  con- 
tained in  a  writing  signed  by  the  party  to  be  charged,  and  that  a 
partial  payment  by  an  executor  or  administrator  on  a  demand  al- 
ready barred  at  the  death  of  the  testator,  is  not  sufficient  to  revive 
it  against  the  estate. 

In  Horseley  v.  Billingsley,  19  Ohio  St.  413,  the  court  held  that 
causes  of  action  subsisting  when  the  code  of  civil  procedure  went 
into  effect,  are  not  affected  by  the  provisions  of  section  24 ;  and, 
therefore,  verbal  promises  to  pay,  made  subsequently  to  that  date, 
and  within  the  original  statutory  period  of  limitation,  are  sufficient 
to  prevent  the  running  of  the  statute  in  such  cases.  But  this  de- 
cision does  not  apply  to  a  case  already  barred  before  the  promise 
is  made.  The  right  of  action,  say  the  court,  here  accrued  in  1840, 
and  was  still  subsisting  }n  1853,  when  the  code  took  effect.  As  under 
our  statute  the  bar  pf  the  statute  is  an  extinction  of  the  debt  (Hill 


PARTIES.  21 

v.  Henry,  17  Ohio,  8),  after  the  code  the  new  promise  is  a  new 
cause  of  action,  and  must  be  in  writing. 

The  payment  of  a  dividend  by  the  assignee  of  an  insolvent 
debtor  is  not  such  part  payment  as  will,  under  section  24  of  the 
code,  take  the  residue  of  the  debt  out  of  the  statutory  limitation 
as  aerainst  the  debtor. 


CHAPTER  IV. 


PAETIES. 

This  title  is  full  of  confusion  and  uncertainty,  growing  out  of  the 
effort  to  provide  for  distinct  classes  of  cases  under  the  same  lan- 
guage. It  must  be  borne  in  mind,  that  the  code  provides  for 
parties  in  cases  at  law,  and  also  in  equity.  The  rules  which  regu- 
late the  parties  in  the  two  classes  are  very  distinct,  and  must  be 
kept  before  the  mind  in  any  effort  to  educe  sytem  out  of  this  title. 
This  title,  like  many  other  parts  of  the  code,  first  fixes  positive 
rules  as  to  the  parties  to  a  case,  and  then  by  a  sweeping  clause, 
leaves  it  to  the  discretion  of  the  court  to  say  who  shall  or  shall  not 
be  necessary  parties  in  a  cause.  We  will  first  consider  who  must 
be  plaintiffs,  and  then  who  may  or  may  not  be ;  and  we  will  then 
pursue  the  same  course  as  to  defendants. 

I.   Who  must  be  Plaintiffs. 

The  following  are  the  sections  of  the  code  on  this  head : 

Sec.  25.  Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  otherwise  provided  in  section  27. 

Sec.  26.  In  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  by  the  assignee  shall  be  without  prejudice  to  any  set-off  or 
other  defense  now  allowed ;  but  this  section  shall  not  apply  to 
negotiable  bonds,  promissory  notes,  or  bills  of  exchange,  transferred 
in  good  faith  and  upon  good  consideration  before  due. 

Sec.  27.  An  executor,  administrator,  guardian,  trustee  of  an  ex- 
press trust,  a  person  with  whom,  or  in  whose 'name,  a  contract  is 
made  for  the  benefit  of  another,  or  a  person  expressly  authorized 
by  statute,  may  bring  an  action,  without  joining  with  him  the 
person  for  whose  benefit  it  is  prosecuted ;  and  official  bonds  may  be 


22  PARTIES. 


sued  upon  in  the  same  way.  This  last  clause  is  contrary  to  sec- 
tion 506.  Bush  v.  Lathrop,  22  N.  Y.  535 ;  Stillwell  v.  Hurlburt,  18 
N.  Y.  374;  People  v.  Norton,  5  Selden,  176;  Meech  v.  Stoner,  19 
N.  Y.  26;  Masury  v.  South  worth,  9  Ohio  St.  340;  Hunter  v. 
Comm'rs,  10  Ohio  St.  515 ;  2  West.  Law  Month.  474;  Allen  v.  Miller, 

11  Ohio  St.  374.  

The  above  are  the  sections  relating  to  the  person  who  must  be 
the  plaintiff.  The  real  party  in  interest  must  be  the  plaintiff. 
Before  undertaking  to  settle  what  this  language  means,  we  may  as 
well  ascertain  to  what  classes  of  cases  it  does  not  apply. 

1.  It  does  not  apply  to  executors,  administrators,  or  guardians. 
The  law  as  to  these  classes  remains  as  it  ever  was,  and  needs  no 
illustration. 

2.  Trustee  of  an  express  trust.  It  is  somewhat  difficult  to  define 
the  exact  meaning  of  these  words.  What  is  an  express  trust  ?  Is 
it  a  trust  created  by  written  contract,  or  may  it  be  proved  by 
parol  ?  Must  the  trust  appear  on  the  face  of  the  contract,  or  may 
it  be  proved  aliunde  the  contract?  Suppose  a  note  is  made  pay- 
able to  A,  while  in  fact  it  is  made  for  the  benefit  of  B.  Can  the 
written  contract  of  the  parties  be  varied  by  parol?  Can  the  de- 
fendant defeat  the  right  of  A  to  recover,  by  showing  that  the 
money  to  be  recovered  really  belongs  to  B  ?  It  would  seem  that 
in  such  cases  there  was  an  express  trust,  and  that  the  cestui  que 
trust  need  not  be  a  party.  He  has  a  right  in  equity  to  sue  both  the 
trustee  and  the  party  indebted ;  the  reason  of  this  is,  because  he 
has  a  right  to  protect  his  own  interest ;  but  in  such  a  case  the 
trustee  is  a  necessary  party.  In  Grinnellu.  Schmidt,  3  Code,  19;  2 
Sand.  S.  C.  706,  it  was  held  that  mercantile  factors  or  agents  doing 
business  for  others,  but  in  their  own  names,  were  trustees  of  an 
express  trust.  It  may  be  found  necessary  to  limit  this  clause  to 
trustees,  in  the  strict  technical  sense  of  that  term,  since  other  clauses 
provide  for  numerous  other  implied  trusts,  and  trusts  to  be  proved 
by  parol. 

But  this  portion  of  section  27  has  received  a  construction  in  the 
New  York  courts  since  the  above  was  written.  The  first  case  to 
which  I  will  refer  is  that  of  The  People  v.  Norton,  9  N.  Y.  176.  In 
this  case  a  bond  from  a  trustee  had  been  taken  in  the  name  of  the 
people  of  the  State  of  New  York,  for  the  benefit  of  those  interested 
in  the  trust  estate ;  and  it  was  held  that  an  action  on  the  bond  was 
properly  brought  in  the  name  of  the  people,  they  being  trustees  of 
an  express  trust,  within  the  meaning  of  this  section.  "  The  next 
question,"  says  Buggies,  C.  J.,  "  is  whether  the  bond  can  be  prose- 


PARTIES.  23 

cutod  in  the  name  of  the  people,  or  whether  it  must  he  sued  in  the 
names  of  those  beneficial^  interested.  According  to  the  code  of 
1849  (section  111)  every  action  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest,  except  as  otherwise  provided  in  section 
113.  By  section  113,  'an  executor  or  administrator,  a  trustee  of 
an  express  trust,  or  a  person  authorized  by  statute,  may  sue  with- 
out joining  with  him  the  persons  for  whose  benefit  the  suit  is  pros- 
ecuted.' The  plaintiffs  in  this  case  were  trustees  of  an  express 
trust  within  the  meaning  of  section  113.  The  duty  of  holding  the 
bond  for  the  benefit  of  the  children  of  Mary  Lynch  appears 
plainly  by  the  recitals  in  the  bond  itself.  Money  collected  on  the 
bond  in  the  name  of  the  people,  is  collected  for  these'children,and 
a  court  of  equity  directs  it  to  be  paid  to  them  as  a  matter  of  course. 
This  construction  of  the  code  of  1849  is  confirmed  by  the  code  of 
1851,  in  which,  by  an  amendment  to  section  113,  it  is  declared  that 
'  a  trustee  of  an  express  trust,  within  the  meaning  of  that  section, 
shall  include  a  person  with  whom  or  in  whose  name  a  contract  is 
made  for  the  benefit  of  another.'  The  action,  therefore,  was  rightly 
brought  in  the  name  of  the  people." 

The  next  case  is  that  of  Considerant  v.  Brisbane,  22  N.  Y.  389. 
The  action  in  this  case  was  brought  on  a  promissory  note,  which 
reads  as  follows : 

"  $5,000.  New  York,  March  1,  1855. 

"  On  the  first  day  of  July,  1856, 1  promise  to  pay  V.  Considerant, 
as  executive  agent  of  the  company,  Bux-eau,  Guillon,  Godin  &  Co., 
the  sum  of  five  thousand  dollars,  for  which  I  am  to  receive  stock 
of  said  company,  known  as  premium  stock  (actions  a  prime)  to 
the  amount  of  $5,000,  value  received.  A.  Brisbane."   * 

There  was  a  second  note  of  the  same  amount,  and  couched  in 
the  same  words. 

The  plaintiff  had  acted  for  said  company  as  its  agent,  and  had 
caused  the  stock  to  be  placed  to  the  name  of  said  defendant,  in 
said  company,  which  company  was  located  at  Brussels,  Belgium, 
and  the  plaintiff  had  always  been  ready  to  deliver  the  certificates 
of  said  stock,  and  the  defendant  had  neglected  to  pay  said  several 
sums  of  $5,000.  A  demurrer  was  interposed  to  this  petition,  be- 
cause it  did  not  state  facts  constituting  a  cause  of  action. 

Wright,  J. :  "  It  is  conceded,  as  it  must  be,  that  the  complainant 
states  a  cause  of  action  in  the,  corporation,  for  whom  the  plaintiff 
acted  as  executive  agent,  against  the  defendant.     The  company, 


24  PARTIES. 

and  not  the  plaintiff,  was  the  party  beneficially  interested;  and 
the  duty  or  obligation  to  issue  the  stock  rested  upon  and  could 
only  be  performed  by  such  company.  Had  the  company,  on  the 
1st  of  July  or  the  1st  of  September,  refused  to  issue  the  stock,  no 
action  could  have  been  maintained  by  anybody  on  the  instruments 
executed  on  March  1,  1855,  by  the  defendant,  and  set  out  in  the 
complaint.  On  the  other  hand,  the  defendant's  remedy  would  be 
against  the  corporation,  and  not  against  the  person  professedly 
acting  as  its  agent.  Thus  the  corporation  had  the  exclusive  ben- 
eficial interest  in  the  subject  of  the  defendant's  promises. 

"  The  facts  stated,  therefore,  in  the  complaint,  showed  the  cor- 
poration and  the  defendant  to  be  the  parties  in  whom  the  interest 
in  the  contract  vested ;  and  the  plaintiff,  who  made  the  contract, 
having  no  beneficial  interest  in  it,  nor  bound  by  it,  nor  furnishing 
any  part  of  the  consideration  for  it,  the  single  question  is,  whether 
the  plaintiff  may  maintain  an  action  for  the  breach  of  it. 

"  The  code  provides  that '  every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  except  that  an  executor  or  ad- 
ministrator, a  trustee  of  an  express  trust,  or  a  person  expressly 
authorized  by  statute,  may  sue  without  joining  with  him  the  per- 
son for  whose  benefit  the  action  is  prosecuted.'  Code,  sees.  Ill, 
113.  And  it  is  declared  that  a  trustee  of  an  express  trust,  within 
the  meaning  of  the  section,  shall  be  construed  to  include  a  person 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit 
of  another.     Sec.  113. 

"  It  is  plain  that  the  plaintiff  is  not  the  real  party  in  interest; 
but  the  question  remains,  is  he  a  trustee  of  an  express  trust,  within 
the  definition  of  that  term  in  section  113  of  the  code?  Is  he  a 
person  with  whom  or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another?  As  such,  he  would  be  authorized  to  sue  on  the 
subscription  notes  in  his  own  name,  notwithstanding  the  beneficial 
interest  was  in  his  principal.     .     . 

"  Prior  to  the  code,  therefore,  I  am  of  opinion  that  the  plaintiff 
might  have  maintained  an  action  on  the  express  contracts  set  out 
in  the  complaint,  for  the  benefit  of  his  principals,  having  a  legal 
title  in  them  by  way  of  trust.  The  promise  being  to  him  in  writ- 
ing, for  the  benefit  of  another,  he  would  have  been  deemed  the 
party  with  whom  or  in  whose  name  the  contracts  were  made,  and 
in  whose  name  alone  the  promise  could  be  enforced  in  a  court  of 
law.     .     .     . 

"  It  (the  code)  is  intended,  manifestly,  to  embrace,  not  only 
formal  trusts,  declared  by  deed  inter  partes,  but  all  cases  in  which 


PARTIES.  25 

n  person,  acting  in  behalf  of  a  third  party,  enters  into  a  written 
express  contract  with  another,  either  in  his  individual  name,  without 
description,  or  in  his  own  name,  expressly  in  trust  for  or  on  behalf 
of,  or  for  the  benefit  of  another,  by  whatever  form  of  expression 
such  trust  may  be  declared.  It  includes,  not  only  a  person  with 
whom,  but  one  in  whose  name  a  contract  is  made  for  the  benefit 
of  another.  The  contracts  set  out  in  the  complaint  are  within 
its  terms.  They  are  made  in  the  name  of  the  plaintiff,  for  the  ben- 
efit of  the  Belgian  corporation.  The  subscription  notes  are  paya- 
ble to  the  plaintiff  by  name,  as  executive  agent  of  principals 
named,  and  are,  therefore,  contracts  made  with  him  for  the  benefit 
of  another,  and  in  a  representative  capacity,  necessarily  involving 
a  trust.  The  court  below  assumed  the  ground  that,  when  the 
promisee,  though  named  in  the  contract,  was  mentioned  only  in 
respect  of  his  official  or  representative  character,  and  not  as  prom- 
isee individually,  the  promise  would  not  be  deemed  made  to  him ; 
and  hence  such  a  case  would  not  be  embraced  within  section  113. 
This  can  not  be  the  true  construction  of  the  statute.  If  the  promise 
be  to  a  person  described  as  agent,  and  it  appears  upon  the  face  of 
the  writing,  expressly  or  by  implication,  that  it  was  made  for  tbe 
benefit  of  another,  it  is  within  the  intention,  and,  I  think,  the 
terms  of  the  enactment.  It  could  hardly  have  been  the  intention, 
as  contended  for  by  counsel  of  the  respondent,  to  include  a  con- 
tract which  did  not,  on  the  face  of  it,  in  terms  or  by  implication, 
declare  or  disclose  a  trust,  in  the  category  of  express  trusts,  while 
one,  expressing  the  trust  on  its  face,  was  to  be  excluded.  The  ob- 
vious policy  of  the  legislature  was  to  reserve  the  right  of  action  in 
all  cases  of  express  trusts,  whether  the  instrument  in  terms  de- 
clared the  trust,  or  by  necessary  implication  disclosed  it.  . 
Indeed,  the  terms  'executive  agent'  indicate  an  active  trust. 
Had  the  subscription  notes,  on  their  face,  been  made  payable  to 
the  plaintiff,  '  in  trust  for  the  company,'  etc.,  no  one  would  doubt 
of  their  falling  within  the  statute.  In  legal  effect,  the  contracts  as 
much  involve  a  trust  as  though  the  same  was  declared  in  words. 

"  The  court  below  reached  the  conclusion  that,  though  the  plaint- 
iff's name  was  contained  in  the  contract,  it  was  accompanied  by 
such  a  designation  of  the  representative  character  in  which  he  was 
named  as  promisee,  that  the  promise  was,  in  judgment  of  law,  made 
to  the  principal,  and  not  to  himself;  and  that,  in  such  cases,  the 
contract  could  not  be  said  to  be  made  in  his  name.  It  is  assumed 
that  the  written  contract  in  this  case  was  made,  in  legal  effect,  with 
the  principals  by  the  plaintiff,  acting  as  their  mere  naked  agent, 


26  PARTIES. 

and,  in  a  legal  sense,  can  not  be  said  to  be  made  with  or  in  the 
name  of  the  plaintiff.  It  would  follow,  from  such  ah  assumption, 
that,  neither  before  nor  since  the  code,  could  the  plaintiff  sue 
thereon.  This,  however,  is  an  incorrect  view.  Before  the  code,  I 
think,  the  remedy  at  law,  upon  an  express  contract  of  this  char- 
acter, must  have  been  enforced  in  the  name  of  the  plaintiff;  but 
that,  if  there  was  any  doubt  upon  this  subject,  the  plaintiff  clearly 
falls  within  that  description  of  person  who,  by  section  113  of  the 
code,  shall  be  construed  to  be  '  a  trustee  of  an  express  trust,'  and, 
as  such,  authorized  to  sue.  Since  the  adoption  of  the  general  rule 
that  actions,  either  of  a  legal  or  equitable  nature,  must  be  prose- 
cuted in  the  name  of  the  real  party  in  interest,  the  person  for 
whose  benefit  the  action  was  prosecuted  might  be  joined  with  the 
trustee  ;  but  section  113  expressly  authorizes  suits  to  be  maintained 
by  the  trustee  alone. 

"  Upon  the  whole,  I  am  of  the  opinion  that  the  action  may  be 
prosecuted  in  the  name  of  the  plaintiff,  and  that  the  demurrer  can 
not  be  sustained." 

Denio,  J.,  dissented  from  the  judgment  of  the  court;  but,  in  his 
dissenting  opinion,  he  admits  the  rule  as  stated  by  Wright,  J.  He 
says:  "  If  this  action  had  been  prosecuted  under  the  rule  as  to 
parties,  which  prevailed  before  the  code  of  procedure  was  enacted, 
the  question  would  have  been,  whether  the  contract  was  made 
with  the  plaintiff,  as  the  promisee,  or  with  the  corporation  men- 
tioned in  the  complaint,  by  the  plaintiff,  as  its  agent.  If  the 
plaintiff  was  considered  the  contracting  party,  the  action  could  be 
maintained  in  his  name,  though  the  corporation  were  the  party 
beneficially  interested  ;  the  rule,  in  actions  ex  contractu,  being  that ' 
the  suit  must  be  in  the  name  of  the  party  in  whom  the  legal  inter- 
est is  vested,  though  the  equitable  interest  should  be  in  another 
person.  The  code,  though  adopting,  as  a  general  rule,  the  practice 
prevailing  in  courts  of  equity,  by  which  the  parties  having  the 
beneficial  interest  were  required  to  be  brought  before  the  court, 
made  an  exception  in  favor  of  the  trustees  of  express  trusts,  and  in 
favor  of  parties  with  whom  and  in  whose  name  contracts  were 
made  for  the  benefit  of  other  persons.  Such  contractors,  in  order 
to  include  them  within  the  words  of  the  exception,  were  to  be  con- 
sidered trustees  of  express  trusts.  The  question  to  be  determined 
is  therefore  precisely  the  same,  which  would  have  arisen,  if  there 
had  been  no  code;  namely,  whether,  in  point  of  law,  this  contract 
was  made  by  the  defendant  with  Mr.  Considerant,  the  plaintiff,  or 
with  the  corporation  named  Bureau,  Guillon,  Godin  &  Co." 


PARTIES.  27 

It  will  be  seen  that  the  whole  court  agree  that,  if  the  contract 
was  made  by  the  defendant  with  the  plaintiif,  then  the  plaintiff 
came  within  this  provision  of  the  code,  and  the  action  could  only 
be  prosecuted  by  him.  It  seems  to  me  that  Judge  Denio  overlooked 
the  important  words,  "and  in  the  name  of  the  person  in  whose  name 
the  contract  was  made."  This  contract  was  clearly  made  in  the  name 
of  Mr.  Considerant.  There  are  here  two  classes  of  cases  which 
come  within  this  provision  of  the  code  :  1.  When  the  contract  is 
made  by  one  for  another;  2.  TV  hen  it  is  made  in  the  name  of  one 
for  another.  Under  the  latter  clause,  the  contract  may  be  made 
by  the  real  parties  in  interest ;  yet,  if  they  draw  up  the  contract 
in  the  name  of  another  person,  for  the  benefit  of  one  of  the  par- 
ties, the  action  on  that  contract  must  be  prosecuted  in  the  name 
inserted  in  the  contract.  The  other  class  is  where  one  makes  a 
contract,  as  an  agent  for  another,  in  his  own  name,  yet  for  the  benefit 
of  his  principal.  In  this  case,  the  action  must  be  brought  in  his 
name,  and  not  in  that  of  his  principal. 

This  question  came  up  again  in  Nelson  v.  Eaton,  26  N.  Y.  410. 
The  court  there  held,  that  where  an  insurance  company  transferred 
to  the  plaintiffs,  as  trustees,  a  promissory  note  as  a  security  for  the 
liabilities  of  persons  who  had  lent  their  credit  to  the  company, 
with  power  to  sell  the  note  at  public  or  private  sale,  without  notice, 
the  power  to  sell  did  not  take  away  the  power  which  the  trustees 
took  by  the  mere  transfer  of  the  note  to  sue  upon  it  in  their  own 
names,  without  joining  the  cestuis  que  trust.  The  court  went  fur- 
ther, and  said  it  would  seem  that,  had  the  trust  deed  contained  an 
express  agreement  not  to  sue,  this  would  have  been  unavailable  to 
the  maker  of  the  note,  he  having  fto  interest  in  the  trust.  Selden, 
J.,  in  delivering  the  opinion  of  the  court,  holds  the  following  lan- 
guage :  "  The  note  constituted  a  perfect  obligation  against  the  de- 
fendant. He  was  bound  to  pay  it  to  the  person  having  the  legal 
title  to  it.  He  was  not  interested  in  the  trust,  and  the  creation  of 
it  had  no  effect  whatever  upon  his  rights  or  duties.  By  the  in- 
dorsement and  transfer  of  the  note  to  the  plaintiffs,  they  obtained 
the  legal  title  to  it,  and  the  right,  the  sole  right,  to  demand  and  re- 
ceive payment  of  it.  The  right  of  action  to  recover  money  attends 
upon  the  right  to  demand  and  receive  it,  and  I  think  can  not  be 
severed  from  it.  Flagg  v.  Munger,  5  Selden,  492.  .  .  .  The 
power  of  sale  given  to  the  plaintiffs  by  the  trust  contract  was  de- 
signed to  give  them  an  authority  which,  by  the  mere  transfer  of 
til-  notes  to  them  as  collateral  security,  they  would  not  have  had. 
I  think  it  was  not  designed  to  take  away  any  power,  which  the 


28  PARTIES. 

transfer  of  the  legal  title  to  the  notes  gave  them.  But  if  such  was 
the  design,  even  if  the  instrument  of  trust  had  contained  an  ex- 
press agreement  on  the  part  of  the  plaintiffs  not  to  sue  the  notes, 
it  would  not  have  aided  the  defendant  in  this  action.  Having  the 
legal  title  to  the  note,  they  had  a  perfect  right  of  action  against 
the  defendant,  and  he  could  not  avail  himself  of  their  covenant 
with  strangers  not  to  prosecute  such  action.  Bank  of  Chenango  v. 
Osgood,  4  Wend.  607-612.  Such  an  action  might  be  a  breach  of 
trust,  but  that  would  not  aid  the  defendant — the  trust  in  no  way  af- 
fecting either  his  rights  or  duties.  The  error  in  the  judgment  in 
this  case  has  arisen  from  a  failure  to  distinguish  between  the  legal 
and  the  equitable  interests  in  the  note,  which  have  no  connection 
with  each  other.  The  legal  interest  depends  upon  the  indorsement 
and  transfer  of  the  note  by  the  insurance  company  to  the  plaint- 
iffs ;  and  in  that  alone  has  the  defendant  any  interest.  That 
transfer  being  perfect,  the  plaintiffs'  right  of  action  was  perfect. 
The  trust  did  not  in  any  way  affect  it." 

The  same  reasoning  and  logic  will  apply  to  the  assignment  of  a 
non-negotiable  instrument.  The  possession  of  the  note  gives  the 
holder  a  prima-facie  right  to  demand  the  payment  of  it,  even 
though  the  same  is  neither  indorsed  nor  negotiable.  An  absolute 
assignment  of  a  non -negotiable  interest  vests  all  the  equity  in  the 
assignee,  and  he  alone  has  the  right  to  demand  payment  or  sue 
thereon.  Any  trust,  then,  in  the  assignee,  not  affecting  the  de- 
fendant, could  not  then  be  invoked  by  him  to  defeat  the  assignee's 
clear  right  to  recover. 

Our  code  speaks  of  trustees  of  express  trusts,  and  of  the  person 
with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of 
another.  These  latter  words  in  our  code  do  not,  as  in  the  New 
York  code,  come  under  the  words  "trustees  of  an  express  trust." 
They  stand  affirmatively  by  themselves. 

These  cases  show  what  is  the  meaning  of  the  words  "  a  person 
with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of 
another  person."  The  trustee  of  an  express  trust  will,  under  our 
statute,  probably  be  limited  to  trusts  as  understood  in  a  court  of 
equity,  while  the  above  clause  will  embrace  such  cases  as  I  have 
just  cited  from  the  New  York  decision.  It  would,  therefore,  appear 
to  be  the  true  doctrine  that  a  contract  in  writing,  made  in  the  name 
of  a  named  person,  must  always  be  sued  in  that  name,  though 
others  may  have  the  real  interest  in  the  contract.  The  parties 
have  made  their  contract  in  a  particular  name,  and  not  in  the  name 
of  those  interested,  deliberately,  and  for  a  reason  satisfactory  to 


PARTIES.  29 

themselves.  To  allow  those  in  interest  to  sue  on  it,  is  to  change 
the  contract  by  making  new  plaintiffs,  when  the  parties  to  the  con- 
tract have  vested  the  legal  right  in  one  for  the  benefit  of  another. 

The  same  doctrine  applies  to  notes,  contracts,  etc.,  indorsed  or 
assigned  to  a  named  person,  for  the  benefit  of  another.  Here  again 
the  parties  make  their  own  contract,  and  the  court  must  cany  it 
out  as  made.  The  indorser  or  assignor  has  the  exclusive  right  to 
say  in  whom  the  legal  title  shall  vest,  and,  when  so  vested,  the 
person  named  is  the  person  in  whose  name  a  contract  is  made  for 
the  benefit  of  another.  In  all  these  cases,  the  facts  come  directly 
within  these  words,  and  the  suit  must  be  prosecuted  in  the  name 
of  the  person  in  which  it  was  made,  to  whom  the  defendant  made 
the  promise  or  agreement ;  nor  has  the  defendant  anything  to  do 
with  the  interests  of  the  persons  for  whose  benefit  the  contract  was 
made.  They  are  capable  of  asserting  their  own  rights  and  pro- 
tecting their  own  interests. 

This  doctrine  does  not  prevent  the  parties  in  interest  from  going 
into  equity  to  protect  their  interests  and  compel  the  trustee  to  carry 
out  the  confidence  and  trust  reposed  in  him. 

3.  A  person  with  whom,  or  in  whose  name  a  contract  is  made  for 
the  benefit  of  another.  This  clause  almost  nullifies  the  whole  extent 
of  section  25.  Here  the  person  with  whom,  or  in  whose  name,  the 
contract  is  made,  may  sue  on  the  contract  alone,  This,  of  course, 
covers  the  great  proportion  of  suits  on  contracts,  and  leaves  the 
law  just  where  it  always  has  been,  and  where  common  sense  would 
leave  it,  and  where  the  contract  of  the  parties  placed  the  right  to 
sue.  Hence  all  suits  on  promissory  notes,  bills  of  exchange,  and 
negotiable  bonds,  may  be  prosecuted  in  the  name  of  the  payee,  or 
indorsee,  without  any  regard  to  the  person  to  whom  the  money  may 
belong.  The  contract  of  the  parties  shall  in  all  such  cases  govern. 
So  it  would  seem  that  a  suit  on  a  non-negotiable  instrument  may 
be  prosecuted  as  formerly  in  the  name  of  the  payee,  though  an 
equitable  assignee  may  be  entitled  to  the  money.  Unless  such  is 
the  fact,  then  this  single  section  has  changed  the  whole  law  re- 
gulating negotiable  instruments.  That  such  was  not  the  intention 
of  the  legislature  is  manifest  from  the  fact  that  the  law  regulating 
negotiable  instruments  is  left  unrepealed. 

4.  A  person  expressly  authorized  by  statute  to  sue  need  join  no 
one  else.     This  needs  no  explanation. 

5.  Officers  may  sue  and  be  sued  in  such  name  as  is  authorized  by 
law,  and  official  bonds  may  be  sued  on  in  the  same  way. 


30  PARTIES. 

It  is  said  the  exception  proves  the  rule;  here  the  exceptions 
emphatically  annihilate  the  rule,  or  at  least  leave  very  few  cases  to 
which  a  rule  so  prorapously  stated  can  apply.  To  what  cases  can 
it  then  apply  ?  It  authorizes  the  real  party  in  interest  in  all  cases 
to  do  what  he  had  in  equity  an  undoubted  right  to  do — to  prosecute 
a  suit  against  the  person  owing  the  debt  or  holding  the  property — 
and  the  party  in  whom  the  legal  title  to  sue  is  vested,  to  enforce 
against  both  his  equitable  rights:  while  it  leaves  the  party  having 
the  legal  title  to  sue,  to  do  it,  it  does  not  permit  the  defendant  to 
defeat  the  action  by  showing  an  equitable  title  in  another.  Unless 
such  a  construction  is  given  to  the  section,  infinite  confusion  must 
ensue.  May  all  choses  in  action  be  held  to  be  legally  assignable, 
so  as  to  vest  the  legal  title  in  a  third  person  ?  If  such  had  been 
the  intention,  why  not  say  so  openly,  and  do  directly  what  would 
be  done  indirectly — repeal  all  laws  regulating  the  negotiability  of 
written  instruments  ?  Can  it  be  possible  that  a  right  of  action 
resting  in  parol,  a  right  of  action  for  seduction,  or  assault  and  bat- 
tery, or  slander,  can  be  assigned  so  as  to  vest  in  the  assignee  a 
legal  right  to  sue? 

The  question  of  the  assignability  of  things  in  action  has  become 
an  important  one  under  the  code,  since  the  assignee  can  bring  an 
action  in  his  own  name.  Every  cause  of  action  which  is  in  law 
assignable,  can  be  sued  on  in  the  name  of  the  assignee. 

In  Meech  v.  Stoner,  19  K  Y.  2G,  it  was  held  that  the  right  of 
action  for  money  lost  in  gaming  is  assignable,  and  the  action  to 
recover  back  the  money  lost,  could  be  brought  in  the  name  of  the 
assignee.  Comstock,  J.,  speaking  for  the  whole  court,  says:  "  The 
assignability  of  things  in  action  is  now  the  rule  ;  non-assignability, 
the  exception.  And  this  exception  is  confined  to  wrongs  done  to 
the  person,  the  reputation,  or  the  feelings  of  the  injured  party,  and 
to  contracts  of  a  purely  personal  nature,  like  promises  to  marry. 
The  People  v.  Tioga  Common  Pleas,  19  Wend.  73;  M'Kee  v.  Judd, 
2  Kernan,  622."  In  this  last  case  it  was  held  that  a  right  of  action 
for  the  wrongful  taking  and  conversion  of  personal  property  is 
assignable ;  and  under  the  provisions  of  the  code  of  procedure  the 
assignee  can  recover  upon  the  same  in  his  own  name.  And  if  the 
demand  is  assignable,  the  action  was  properly  brought  in  the  name 
of  the  assignee,  the  plaintiff,  who  had  the  exclusive  right  to- recover 
the  damages  for  the  purposes  of  the  trusts.  Code,  sees.  Ill, 
113.  No  demand  or  refusal  was  necessary  to  maintain  the  action. 
By  the  assignment  the  plaintiff  succeeded  to  all  the  rights  of  the 


PARTIES.  31 

assignor ;  this  is  a  necessary  consequence  of  the  assignability  of 
the  claim,  as  distinguished  from  the  property  converted.  1  Selden, 
344.  The  same  doctrine  is  re-asserted  in  the  case  of  Eightmeyer 
v.  Kemsen,  38  N.  Y.  206. 

In  the  case  of  Waldron  v.  Willard,  17  N.  Y.  466,  it  was  held  that 
the  claim  for  damages  sustained  by  a  freighter  to  goods  in  hands 
of  a  common  carrier,  was  assignable,  and  the  assignee  could  sue  and 
recover  the  same  in  his  own  name.  So  also  a  claim  for  damages 
sustained  to  property  by  the  negligence  of  one  who  had  agreed  to 
keep  the  canal  in  repair,  is  assignable,  and  the  assignee  can  sue  for 
and  recover  for  these  damages.  The  suit  in  this  case  was  brought 
by  an  insurance  company  having  a  policy  on  the  goods,  which,  after 
paying  the  loss,  took  an  assignment  from  the  insured  for  his  claim, 
against  the  person  bound  to  keep  the  canal  in  repair.  Fulton  In- 
surance Co.  v.  Baldwin,  37  N.  Y.  648.  The  court  say  :  "  It  is  only 
necessary  to  state  the  action  against  the  defendant  in  this  case  to 
show  that  it  is  assignable.  The  defendant,  under  his  contract  with 
the  State  to  keep  this  section  of  the  Erie  canal  in  repair  and  free 
from  obstructions,  owed  a  duty  to  perform  it,  and  which  inured 
to  the  benefit  of  every  citizen  in  the  State  who  might  have  occa- 
sion to  use  this  canal ;  and  the  defendant's  neglect  to  remove  this 
obstruction,  in  disregard  of  the  duty  which  he  owed  to  all  who 
might  be  concerned  in  the  navigation  of  the  canal,  rendered  him 
liable  in  this  action. 

"  The  action  is,  in  short,  to  recover  for  a  loss  of  property  sustained 
by  the  plaintiff's  assignor,  in  consequence  of  the  defendant's  negli- 
gence in  suffering  the  sunken  canal-boat  to  impede  the  navigation 
of  the  canal,  and  endanger  the  property  of  those  navigating  the 
canal." 

In  Merill  v.  Grinnell,  30  N.  Y.  594,  it  was  ruled  that  a  right  of 
action  against  a  common  carrier  to  recover  the  value  of  property 
intrusted  to  him,  is  assignable ;  and  the  assignee  may  sue  in  his 
own  name.  In  this  case  the  property  lost  was  the  baggage  of  a 
passenger. 

In  Masury  v.  Southworth,  9  Ohio  St.  340,  the  court  held  that  the 
assignee  of  a  reversion,  having  also  assigned  to  him,  by  the  terms 
of  his  contract  of  conveyance,  the  benefit  of  the  covenants  in  a 
lease,  might  bring  an  action  in  his  own  name  for  a  breach  of  such 
covenants,  as  the  party  beneficially  interested,  under  the  code  of 
civil  procedure,  which  in  this  respect  supplies  the  statute  32  II.  8, 
cap.  34. 

Gholson,  J.,  said,  in  delivering  the  opinion  of  the  court :  "  It  has 


32  PARTIES. 

been  decided  by  this  court  that  the  statute  of  32  H.  8,  cap.  34,  is 
not  in  force  in  this  State,  and  that  an  assignee  of  the  reversion  can 
not  maintain  an  action  upon  covenants  in  the  lease.  But  if  the 
covenant  is  assignable  in  equity,  so  that  an  action  might  have  been 
maintained  in  the  name  of  the  assignor,  or  relief  obtained  by  a  suit 
in  equity,  our  code  of  civil  procedure  operates  upon  the  remedy, 
even  more  extensively  than  the  statute  of  32  H.  8,  cap.  34.  For 
whether  the  covenant  be  collateral,  or  inhere  in  the  land,  if  it  b 
assigned,  the  assignee  not  only  may,  but,  as  the  party  beneficially 
interested,  must  sue  in  his  own  name.  For  example,  if  there  be  a 
contract  by  a  lessee  to  build  a  house  or  a  road  upon  the  land,  at 
any  time,  and  whether  to  be  used  by  the  lessee  or  not,  the  lessor, 
in  selling  the  reversion,  may  also  assign  the  benefit  of  such  a  con- 
tract, and  the  action  of  the  assignee  for  a  breach  would,  under  the 
code,  be  in  his  own  name." 

In  Hunter  v.  The  Commissioners  of  Mercer  County,  10  Ohio  St. 
515,  the  court  held  that  in  an  action  on  a  county  treasurer's  bond 
for  taxes  not  paid  over,  the  action  can  not  be  prosecuted  in  the 
name  of  the  county  commissioners,  but  must  be  prosecuted  in  the 
name  of  the  State  of  Ohio.  , 

In  Allen  v.  Miller,  11  Ohio  St.  374,  377,  Brinkerhoff,  J.,  holds  the 
following  language  :  "  By  the  provisions  of  the  code,  the  assignee 
of  an  account  is  its  legal  holder;  his  title  is  not  a  mere  equitable 
title  as  before  the  adoption  of  the  code,  but  a  legal  title.  He  holds 
it,  not  with  the  incidents  of  inviolability,  which  attach  to  commer- 
cial paper,  it  is  true,  but  still  as  its  legal  holder,  and  as  such  is,  prima 
facie,  its  proper  representative  as  against  the  debtor." 

The  judge  here  assumes  the  fact  to  be  proved ;  he  refers  to  no 
section  of  the  code,  which  declares  any  such  doctrine  as  would 
change  an  equitable  into  a  legal  right.  Before  the  code,  the  right 
of  the  assignee  was  an  equitable  one.  The  code  nowhere  changes 
this  right ;  it  merely  says  that  the  real  party  in  interest  shall  bring 
the  suit,  and  then  merely  says  that  the  action  by  assignee  shall  be 
without  prejudice  to  any  set-off,  or  other  defense  now  allowed.  The 
law  before  the  code,  required  the  action  to  be  in  the  name  of  the 
assignor,  the  holder  of  the  legal  title  ;  and  in  saying  the  assignee 
may  sue,  it  declares  that  the  same  set-off,  or  other  defense,  ma}-  be 
made  against  the  assignee  that  could  be  made  when  the  action  was 
brought  by  the  assignor  for  the  use  of  the  assignee.  There  is  here 
not  one  word  said  of  converting  an  equitable  into  a  legal  right ;  the 
code  deals  with  an  assignment  as  an  assignment,  leaving  its  char- 
acter to  be  settled  by  the  law  in  force,  and  not  by  the  code.     Be- 


PARTIES.  33 

sides,  the  code  is  a  code  of  civil  procedure ;  it  provides  for  the  en- 
forcement of  rights,  and  nowhere  assumes  to  change  old  rights  or 
create  new  ones.     This  definition  was  designed  to  include  equitable 
remedies  and  provide  for  parties  to  such  actions  as  well  as  to  ac- 
tions founded  on  legal  rights.     This  provision  was  the  adoption  of 
what  was  before  the  rule   in  equity.     If  the  assignee  went  into 
equity,  as  he  could,  he  was  the  complainant,  and  the  debtor  and 
assignor   were   the   defendants.     If  this   provision    converts  one 
equitable  right  into  a  legal  one,  why  should   it  not  convert  all 
equitable  rights  into  legal  ones  ?    If  it  has  any  such  effect,  that 
effect  must  apply  to  all  equities.     It  is  illogical  to  limit  this  effect 
to  an  account,  or  a  note,  and  not  apply  it  to  other  equities,  where 
the  cestui  que  trust  must  sue  in  his  own  name.     The  code  simply 
provides  remedies  for  existing  rights  ;  rights,  whether  legal  or  equi- 
table, remain  unaffected  by  the  code. 

The  relation  between  the  assignee  of  such  equity  and  the  debtor, 
is  the  same  as  between  assignor  and  debtor.  There  can  be  no  bona 
fide  purchaser  without  notice  of  an  equity ;  whereas,  there  could 
be,  if  the  equitable  right  was  converted  into  a  legal  one  in  the  as- 
signee. In  Bush  v.  Lathrop,  22  N.  Y.  535,  the  Court  of  Appeals 
held  that  the  equities  existing  between  the  assignor  and  assignee 
of  a  chose  in  action  not  negotiable,  attend  the  title  transferred  to 
a  subsequent  assignee  for  value  without  notice.  The  latter  takes 
the  exact  position  of  his  vendor.  "  All  the  cases,"  says  Denio,  J., 
"  agree  that  the  purchaser  of  a  chose  in  action  takes  the  interest 
purchased,  subject  to  all  the  defenses,  legal  and  equitable,  of  the 
debtor,  who  issued  the  security."  All  the  cases  equally  agree  that 
one  purchasing  of  one  having  the  legal  title  and  taking  that  for  a 
valuable  consideration,  without  notice,  is  not  subject  to  this  rule. 
If  the  assignee  of  an  account  takes  the  legal  title,  he  can  transfer 
that  legal  title  to  a  bona  fide  purchaser  without  notice,  and  he  can 
enforce  the  collection  of  it,  as  much  as  the  indorsee  of  a  negotiable 
note  bona  fide  and  without  notice.  His  right  stands  on  the  ground 
that  he  has  acquired  the  legal  title  bona  fide  for  value,  without  no- 
tice. If  he  took  the  note  without  indorsement,  under  similar  cir- 
cumstances, he  could  not  enforce  its  collection  against  the  makers 
having  a  defense ;  and  the  reason  is,  he  has  only  an  equity  and  not 
the  legal  title.  It  may  be  well  to  leave  the  rights  of  parties  where 
the  law  left  them  before  the  code,  instead  of  converting,  through  a 
misconstruction  of  the  code,  equitable  rights  into  legal  ones.  The 
interest,  therefore,  of  the  assignee  of  a  chose  in  action  in  the  same 
is  an  equitable  and  not  a  legal  interest,  and  the  code  simply  enables 
vol.  i — 3 


34  PARTIES. 

him  generally  to  sue  in  his  own  name  on  such  chose  in  action,  aver- 
ring an  assignment  for  a  valuable  consideration  to  himself,  and  the 
case  is  to  be  tried  and  decided  just  as  though  the  action  had  been 
brought  in  the  name  of  the  assignor  for  the  use  of  the  assignee. 

The  rule  as  to  what  is  assignable  is  that  the  right  of  action  is 
one  arising  out  of  a  contract  or  transaction  relating  to  rights  of 
property,  whether  real  or  personal.  Where  the  transaction  is  such 
that  no  injury  to  property  has  arisen  out  of  it,  like  a  promise  to 
marry,  assault  and  battery,  injury  on  a  railroad,  false  imprison- 
ment, and  the  like,  there  is  nothing  to  assign. 

The  title  in  regard  to  the  abatement  and  survivors  of  actions 
shows  that  such  can  not  be  the  case.  Section  398  recognizes  the 
common  law  as  to  the  survivor  of  the  causes  of  actions,  and  as  to 
the  abatement  of  them,  with  a  slight  modification.  Section  399 
declares  that  no  action  pending  shall  abate  by  the  death  of  either 
or  both  the  parties,  except  an  action  for  libel,  slander,  etc.  2  S.  & 
C.  1058.  Here  it  is  the  parties  to  the  action,  whose  death  will  not 
abate  certain  actions,  except  an  action  of  slander,  libel,  malicious 
prosecution,  assault,  etc.,  which  shall  abate  by  the  death  of  the  de- 
fendant. If  an  action  is  not  pending,  then  the  common  law  applies, 
and  the  death  of  either  party  will  prevent  a  suit.  At  common 
law  all  personal  actions  died  with  the  party.  Wilbur  v.  Gilmore, 
21  Pick.  250.  In  actions  ex  delicto,  where  the  wrong-doer  acquired 
no  gain,  though  theother  party  had  suffered  a  loss,  the  death  of  either 
party  destroyed  the  right  of  action.  Middleton  v.  .Robinson,  1  Bay, 
58  ;  Pitts  v.  Hale,  3  Mass.  321 ;  Millen  v.  Baldwin,  4  lb.  480  ;  Stet- 
son v.  Kempton,  13  lb.  272  ;  McEvers  v.  Pitkin,  1  Root,  216  ;  Frank- 
lin v.  Low,  1  Johns.  396  ;  Hambly  v.  Trott,  Adm'r,  Cowp.  372  ; 
Holmes  v.  Moore,  5  Pick.  257.  Can  it,  therefore,  be  possible  that 
the  legislature  intended  to  make  negotiable  a  cause  of  action  which 
must  be  extinguished  even  by  the  death  of  the  assignor  ?  The 
statute  speaks  of  the  death  of  the  person  entitled  to  such  action  as 
abating  the  same.  Now,  if  it  is  negotiable,  the  death  of  the  as- 
signee after  assignment  would  extinguish  the  right  of  action, 
as  he  would  then  be  the  person  entitled  to  the  action.  This  whole 
chapter  goes  upon  the  assumption  that  such  rights  of  action  are 
to  be  prosecuted  in  the  name  of  the  person  injured.  In  Hodgman 
v.  The  Western  Railroad  Corporation,  7  Pr.  492,  Harris,  J.,  uses  the 
following  emphatic  language :  "At  common  law  no  mere  right  of 
action  was  so  assignable  as  to  pass  the  legal  right  to  the  assignee." 
The  only  change  made  by  the  code,  in  this  respect,  is  to  transfer, 
with  the  beneficial  interest,  the  right  of  action  also,  in  those  cases 


PARTIES.  35 

where  before  the  court  would  recognize  and  protect  the  rights  of 
the  assignee.  No  new  right  of  action  is  created  ;  no  authority  is 
given  to  assign  a  right  of  action  which  before  was  not  assignable. 

"When  the  right  of  action  is  of  such  a  nature  as  not  to  be  the  sub- 
ject of  a  contract,  as  in  the  case  of  a  violation  of  personal  or  rela- 
tive rights,  it  can  not  be  assigned.  The  action  can  only  be  main- 
tained by  the  party  who  has  been  injured,  and  when  he  dies,  the 
right  of  action  also  dies.  Every  right  of  action  involving  life, 
health,  or  reputation,  belongs  to  this  class.  So  a  right  of  action, 
founded  upon  the  breach  of  a  promise  of  marriage,  being  in  its 
nature  a  personal  injury,  can  not  be  transferred.  On  the  other 
hand,  where  the  injury  affects  the  estate  rather  than  the  person, 
where  the  action  is  brought  for  damage  to  the  estate,  and  not  for 
personal  suffering,  the  right  of  action  may  be  bought  and  sold. 
Such  a  right  of  action  upon  the  death,  bankruptcy,  or  insolvency 
of  the  party  injured,  passes  to  the  executor,  or  assignee,  as  a  part 
of  his  assets;  because  it  affects  his  estate,  and  not  his  personal  or 
relative  rights.  Of  course,  such  a  right  of  action  is  assignable, 
and,  under  the  provisions  of  the  code,  the  assignee  is  the  proper 
party  to  maintain  the  action  upon  it.  The  People  v.  Tioga  Com. 
Pleas,  19  Wend.  73  ;  1  Chitty's  PI.  68 ;  Chamberlain  v.  Williamson, 
2  M.  &  S.  408  ;  Pobinson  v.  Weeks,  6  Pr.  161 ;  Flynn  v.  The  Hudson 
Eiver  R.  E.  Co.,  6  lb.  308  ;  Comegys  v.  Vasse,  1  Peters,  213.  In  the 
latter  case,  Story,  J.,  says  :  "  In  general,  it  may  be  affirmed  that  mere 
personal  torts,  which  die  with  the  party  and  do  not  survive  to  his 
personal  representatives,  are  not  capable  of  passing  by  assignment; 
and  that  vested  rights  ad  rem  and  in  re,  possibilities  coupled  with 
an  interest,  and  claims  growing  out  of  and  adhering  to  property, 
may  pass  by  assignment."  Hence  it  was  held  that  a  right  of  ac- 
tion for  injuries  suffered  by  one  on  a  railroad  could  not  be  assigned, 
so  as  to  enable  the  assignee  to  sue  in  his  own  name.     Ibid. 

It  would  seem  from  what  has  been  said,  that  the  real  party  in 
interest  refers  rather  to  choses  in  action,  which  have  been  assigned, 
than  to  actions  between  the  original  parties  to  contracts.  In  those 
cases  the  action,  if  founded  on  legal  principles,  must  be  brought  in 
the  name  of  the  party  to  whom  the  promise  is  made,  or  the  obliga- 
tion assumed.  The  language, "  the  person  in  whose  name  a  contract 
is  made  for  the  benefit  of  another,"  embraces  every  contract  not 
made  for  the  benefit  of  the  party  himself.  Every  contract  must 
be  for  the  benefit  of  the  person  in  whose  name  it  is  made,  or  for 
the  benefit  of  a  third  person :  if  made  for  his  own  benefit,  then  all 
agree  the  uetion  must  be  in  his  own  name ;  and  if  made  in  his 


36  PARTIES. 


name  for  the  benefit  of  another,  then  the  suit  must  at  law  be  in  his 
name,  because  the  code  so  declares. 

The  most  difficult  question  arises  where  there  have  been  assign- 
ments. The  cases  already  cited  show  that  an  assignment  in  writ- 
ing to  a  named  person  for  the  use  of  others  vests  the  title  in  the 
assignee,  and  that  he  must  sue  to  recover  the  amount  claimed  to 
be  due  thereon. 

There  is  another  class  of  cases  where  the  assignment  is  made  in 
writing,  and  the  assignee  agrees  to  collect  and  retain  part,  and  pay 
the  balance  over  to  assignor  or  to  others.  In  this  class  of  cases  the 
action  must  be  brought  in  the  name  of  the  assignee,  he  holding  the 
legal  or  equitable  title  and  being  authorized  to  collect ;  his  liabil- 
ity to  others  being  personal  and  not  attaching  to  the  chose  in  action 
itself. 

In  Commings  v.  Morris,  25  ~N.  Y.  625,  it  was  held  that  the  in- 
dorsee of  a  note,  for  a  consideration  not  to  be  paid  till  the  note 
should  be  collected,  is  the  real  party  in  interest  to  maintain  an  action 
thereon.  In  this  case  the  note  was  transferred  by  the  payee  for 
the  benefit  of  his  family.  The  opinion  of  the  court  was  delivered 
by  Allen,  J.  "  By  the  statute,"  he  says,  "every  action  must  now 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  except  in 
the  few  cases  of  trust  and  representation  excepted  by  law.  Code, 
sec.  111.  The  object  of  this  provision  was  to  abolish  the  distinc- 
tion between  the  former  practice  of  courts  of  common  law  and 
chancery,  and  give  full  effect  at  law  as  well  as  in  equity  to  assign- 
ments of  rights  in  action  by  permitting  and  requiring  the  assignee 
to  sue  in  his  own  name.  If,  as  between  the  assignor  and  assignee, 
the  transfer  is  complete,  so  that  the  former  is  divested  of  all  con- 
trol and  right  to  the  cause  of  action,  and  the  latter  is  entitled  to 
control  it  and  receive  its  fruits,  the  assignee  is  the  real  party  in 
interest,  whether  the  assignment  was  with  or  without  considera- 
tion, and  notwithstanding  the  assignee  may  have  taken  it,  subject 
to  all  equities  between  the  assignor  and  third  persons.  The  con- 
sideration and  circumstances  of  the  transfer  may  be  important  with 
a  view  to  settle  the  equities  and  establish  the  rights  of  others  ;  but 
if  it  is  absolute  as  between  the  immediate  parties  to  it,  the  assignor 
not  only  may,  but  must  bring  the  action  in  his  own  name.  The 
consideration  was  ample,  and  it  does  not  affect  the  transaction  that 
it  was  not  to  be  paid  until  the  notes  should  be  collected,  and  it 
may  be  its  payment  was  conditional,  depending  upon  that  con- 
tingency. But  the  notes  became  the  the  property  of  the  plaintiff 
although  his  liability  to  pay  them  was  contingent.     .     .     .     The 


PARTIES.  37 

plaintiff  may  receive  and  appropriate  the  money  that  may  be  col- 
lected on  them  to  his  own  use.  This  gives  him  the  legal  title  and 
makes  him  the  proper  party  plaintiff."  Selden  v.  Pugh,  17  Barb. 
468 ;  Hastings  v.  McCurdy,  1  E.  D.  Smith,  273;  James  v.  Chalmers, 
2  Selden,  209;  Eoss  v.  Bedell,  5  Benio,  467. 

This  section  came  again  under  consideration  in  the  case  of  Allen 
v.  Brown,  44  N.  Y.  228.  It  was  there  held  that  an  assignee  of  a 
chose  in  action,  holding  the  legal  title  by  written  assignment,  valid 
upon  its  face,  is  the  real  party  in  interest  under  section  111  of  the 
code  of  procedure,  although  others  may  have  an  ultimate  beneficial 
interest  in  the  proceeds,  and  even  if  he  would  be  liable  as  their 
debtor,  under  his  contract  with  them,  for  the  amount  realized. 
The  claim  in  this  case  arose  out  of  the  following  facts  :  Cook,  Carey 
&  Clark  had  certain  claims  against  a  western  railroad ;  the  de- 
fendant had  also.  The  defendant  took  the  claim  of  C,  C.  &  C. 
to  collect ;  he  did  collect  same,  but  had  not  paid  over  certain 
moneys  received  by  him  on  certain  notes  he  had  taken  on  settle- 
ments. C,  C.  &  C.  assigned  all  their  interest  in  the  demand  to 
the  plaintiff,  who  commenced  this  action.  The  claim,  therefore, 
was  an  unliquidated  demand  not  evidenced  by  any  note  in  writing. 
It  was  a  non-negotiable  demand.  Allen  paid  nothing,  and  if  he 
got  beat,  he  was  to  pay  nothing. 

Hunt,  C. :  "The  code  abolishes  the  distinction  between  actions 
at  law  and  suits  in  equity,  and  between  the  forms  of  such  actions. 
It  is  also  provided  in  section  111  that  every  action  must  be  prose- 
cuted in  the  name  of  the  real  party  in  interest,  except  as  otherwise 
provided  in  section  113.  .  .  .  These  provisions  are  intended  to 
abolish  the  common-law  rule,  which  prohibited  an  action  at  law 
otherwise  than  in  the  name  of  the  original  obligee  or  covenantee, 
although  he  had  transferred  all  his  interest  in  the  bond  or  cov- 
enant to  another.  It  accomplishes  fully  that  object,  although  others 
than  the  assignee  may  have  an  ultimate  beneficial  interest  in  the 
recovery.  In  a  case  like  the  present,  the  whole  title  passes  to  the 
assignee,  and  he  is  legally  the  real  party  in  interest,  although  others 
may  have  a  claim  upon  him  for  a  portion  of  the  proceeds.  The 
specific  claim  and  all  of  it  belongs  to  him.  Even  if  he  is  liable  to 
another  as  a  debtor  upon  his  contract  for  the  collection  he  may  thus 
make,  it  does  not  alter  the  case.  The  title  to  the  specific  claim  is 
his."  Durgin  v.  Ireland,  4  Kernan,  322;  Williams  v.  Brown, 
2  Keys,  486,  and  the  case  cited ;  Paddon  v.  Williams,  1  Eob.  340 ; 
S.  C.,  2  Ab.  N.  S.  88. 


38  PARTIES. 

Leonard,  Comm'r,  also  said :  "  It  is  urged  that  there  was  no  con- 
sideration for  the  assignment  of  Cook,  Clark  &  Carey  to  the 
plaintiff.  It  was  in  writing,  signed  by  the  parties,  and  purported 
to  be  for  value  received.  The  assignors  transferred  their  interest, 
and  the  plaintiff  became  thereby  the  real  owner.  Any  judgment 
recovered  by  him  bars  the  claims  of  the  assignors  and  protects  the 
defendant.  Being  a  chose  in  action,  the  transfer  does  not  pre- 
clude the  defendant  from  interposing  any  defense  which  he  could 
have  made  against  the  assignors,  had  the  action  been  brought  by 
them.  The  execution  of  the  assignment  complies  with  the  re- 
quirement of  the  code,  and  makes  the  plaintiff  the  real  party  in 
interest.     Sec.  111." 

The  same  doctrine  was  re-asserted  in  the  case  of  Meeker  v.  Clag- 
horn,  44  N.  Y.  349.  The  court  held  that  the  assignee  of  a  cause 
of  action  by  absolute  assignment  in  writing  is  the  real  party  in 
interest  within  section  111  of  the  code,  notwithstanding  it  may 
appear  that  the  assignor  expects  to  get  the  money,  if  it  is  recovered 
in  the  action.  The  claim  in  this  case  was  an  open  account  for  iron- 
work delivered  by  the  assignors  to  the  defendant. 

In  Williams  v.  Brown,  2  Keys,  486,  Hunt,  J.,  says:  "If  the 
holder  of  a  promissory  note  is  legally  in  its  possession,  and  is  en- 
titled to  receive  its  payment,  we  have  repeatedly  held  that  he  is 
the  proper  plaintiff  in  its  prosecution,  and  this  without  reference 
to  who  may  ultimately  be  entitled  to  a  participation  in  its  pro- 
ceeds." Hunt  v.  O'Connor,  not  reported ;  Boss  v.  Black,  not  re- 
ported. 

These  cases  settle  the  true  construction  of  these  sections.  The 
debtor  has  no  interest  in  the  transfer;  nor  can  he  inquire  into  the 
motive  or  consideration  for  the  assignment ;  that  is  a  matter  in 
which  he  has  no  interest.  If  the  assignor  chooses  to  assign  a  chose 
in  action  out  of  love  and  affection,  or  as  a  gift,  what  right  has  the 
defendant  to  inquire  into  that  fact  ?  If  the  assignment  is  abso- 
lute, the  assignee  is  substituted  for  the  assignor  in  the  action  and 
can  prosecute  the  action  thereon  in  his  own  name.  The  debtor  has 
nothing  to  do  with  trusts,  or  other  considerations  or  promises 
attending  the  assignment;  all  he  has  a  right  or  an  interest  to  in- 
quire into,  is  as  to  the  fact  of  the  assignment,  as  to  whether  the 
assignor  has  vested  in  the  assignee  all  the  rights  he  had  to  demand 
the  money.  Any  other  construction  of  the  code  would  lead  to  end- 
less conflicts  and  litigation  between  the  assignee  and  the  debtor. 
Besides,  any  such  construction  would  put  an  end  to  all  assignments, 
where  there  was  any  arrangement  connected  with  it  whereby  the 


PARTIES.  39 


assignor  or  others  might  have  a  claim  in  the  money  when  col- 
lected. There  could  be  no  assignment  unless  the  assignee  took 
both  the  equitable  interest  in  the  claim  and  the  absolute  right  to 
the  money  when  collected. 

There  is  another  case  that  may  be  cited,  that  of  Whitman  v. 
Keith,  18  Ohio  St.  134.  In  this  case  it  was  held  that  the  assignees 
of  a  judgment  rendered  in  a  case,  where  an  attachment  had  been 
issued  and  parties  garnisheed,  might  maintain  an  action  against  the 
garnishee  under  the  provisions  of  section  218  of  the  code.  The 
court  say:  "This  right  of  action  against  the  garnishee,  given  by 
section  218  of  the  code,  was  intended  as  a  means  of  procuring  sat- 
isfaction of  the  attaching  creditor's  claim.  It  is  incidental  to  and 
inseparable  from  the  ownership  of  such  claim,  and  by  the  assign- 
ment of  the  claim  passes  to  the  assignee." 

The  survivor  of  a  partnership  is  the  real  party  in  interest,  and 
the  action  on  partnership  claims  must  be  prosecuted  in  his  name ; 
the  administrator  or  executor  of  a  deceased  partner  can  not  be 
joined  with  him.     Duby  v.  Ericsson,  45  N.  Y.  786. 

The  doctrine  was  carried  to  a  great  length  in  Hall  v.  Plaine,  14 
Ohio  St.  417.  In  that  case,  Ebert,  on  the  24th  February,  1854, 
bought  of  Plaine  in  his  own  name  a  tract  of  land,  but  in  trust  for 
Hall,  the  plaintiff,  and  took  a  deed  therefor  in  his  (Ebert's)  name, 
containing  the  general  covenants.  Ebert  afterward  conveyed  the 
land  to  Hall ;  at  the  time  the  deed  was  made,  the  lot  was  incum- 
bered by  two  outstanding  leases  executed  by  Plaine.  Hall  brought 
suit  on  the  covenant  in  the  deed  against  incumbrances.  The  ques- 
tion was,  could  Hall  under  these  circumstances,  without  an  assign- 
ment from  Ebert,  maintain  the  action  ;  and  the  court  held  he  could. 
"Wilder,  J.,  delivered  the  opinion  of  the  court.  He  says :  "  The 
objection  here  is  that  there  is  no  averment  of  the  assignment  of 
the  broken  covenant  by  Ebert  to  Hall.  But  it  is  only  a  fair  con- 
struction of  the  above  allegations  that  Ebert  was  the  agent  of 
Hall  in  making  the  purchase  ;  that  he  received  the  title  in  trust  for 
Hall;  and  that,  by  the  arrangements  of  the  3d  March,  1854,  he 
transferred  to  Hall,  not  merely  the  legal  title,  but  all  the  interest 
he  acquired  from  Plaine.  The  beneficial  interest  and  equitable 
title  was  in  Hall  from  the  beginning.  Before  the  code,  Hall  could 
have  sued  on  the  covenant  in  the  name  of  Ebert  for  his  (Hall's)  use. 
Hall  would  have  been  entitled  to  the  damages  recovered,  because 
he  was  the  party,  and  not  Ebert,  by  whom  the  damages  were  sus- 
tained. Since  the  code  that  form  of  procedure  is  not  required. 
Section  25  of  the  code  provides  that  every  action  must  be  prose- 


40  PARTIES. 

cuted  in  the  name  of  the  real  party  in  interest,  except  as  other- 
wise provided  in  section  27.  This  language  is  mandatory.  In 
section  27  it  is  permissive:  'An  executor,  administrator,  guardian, 
trustee  of  an  express  trusty  a  person  with  whom  or  in  whose  name 
a  contract  is  made  for  the  benefit  of  another,  or  a  person  expressly 
authorized  by  statute,  may  bring  an  action  without  joining  with 
him  the  person  for  whose  benefit  it  is  prosecuted.'  Although 
under  this  section  an  action  might  have  been  brought  by  Ebert,  in 
his  own  name,  as  the  person  in  whose  name  the  contract  was  made, 
yet  this  is  not  required.  Ebert  is  a  party  defendant,  and  Hall  is 
the  real  party  in  interest.  The  pleadings,  therefore,  show  that  the 
claim  is  well  prosecuted  in  the  name  of  Hall." 

Such  is  the  opinion  of  the  judge;  but  the  syllabus,  which  is 
drawn  up  by  the  court,  and  said  to  be  only  what  the  court  is  re- 
sponsible for,  is  in  these  words :  "When  lands  have  been  purchased 
by  one  and  conveyed  to  him  for  the  benefit  of  another,  the  deed 
of  conveyance  containing  covenants  of  seizin  against  incumbrances 
and  general  warranty,  which  covenants  are  broken  at  the  time  of 
the  execution  of  the  deed,  and  the  party  for  whom  the  purchase 
and  conveyance  were  made  subsequently  obtains  a  conveyance  of 
the  land  from  his  agent  and  trustee,  such  party  may  maintain  an 
action  in  his  own  name,  under  the  code,  on  the  broken  covenants, 
although  such  covenants  did  not  pass  to  him  by  the  mere  convey- 
ance of  the  land,  or  have  not  in  terms  been  assigned  to  him." 

The  judge  puts  the  case  on  the  ground  that  the  pleadings  show 
that  the  claim  is  not  prosecuted  in  the  name  of  Hall,  while  the 
syllabus  says  that  Hall  may  maintain  the  action.  The  action  was 
strictly  a  bill  in  chancery  under  the  old  practice,  when  the  cestui 
que  trust  sues  the  trustee,  here  Ebert,  who  held  the  title  for  him 
and  the  warrantor  in  the  deed,  asking  that  the  damages  might  be 
paid  to  him,  as  in  equity  they  belonged  to  him.  On  this  ground  the 
decision  is  correct,  but  on  any  other  it  is  very  debatable.  There 
was  here  no  assignment  of  the  covenant  against  incumbrances  by 
Ebert  to  Hall,  which  covenant  was  broken  when  the  deed  was 
made  and  delivered,  as  the  incumbrances  then  existed.  Here  was 
then  a  right  of  action  in  Ebert,  which  the  conveyance  of  the  land 
did  not  assign,  nor  was  there  a  specific  assignment  of  it ;  it  was  a 
case  then  of  a  contract  made  in  the  name  of  Ebert  for  the  benefit 
of  Hall,  on  which  the  courts  in  New  York  hold  no  one  but  Ebert 
could  sue.  But  the  equitable  right  of  a  cestui  que  trust  to  sue  in 
equity  his  trustee  and  the  party  holding  his  equitable  interest,  is 
not  taken  away  by  the  code;  and  of  that  character  was  this  action 


PARTIES.  41 

of  Hall  v.  Plaine  and  Ebert.  On  that  ground  the  decision  has  law 
to  support  it,  but  it  can  not  be  supported  on  any  other.  The 
decision  was  right,  but  the  reasons  were  bad. 

It  would  seem,  therefore,  that  this  section  must  be  limited  to 
those  cases  where,  heretofore,  a  court  of  law  would  protect  the  interest 
of  an  assignee,  or  where  an  assignee  might  maintain  a  bill  in  chan- 
cery to  enforce  his  rights  against  the  assignor  and  the  creditor. 
Hence  it  does  not  apply  to  cases  where  the  assignee  acquires  the 
legal  title,  as  in  the  case  of  indorsees.  Nor  can  it  apply  to  real 
estate.  There  the  holder  of  the  legal  title  is  entitled  to  recover, 
and  the  defendant  can  not  defeat  that  right  by  showing  an  out- 
standing equity  in  another.  That  is  a  matter  which  only  the  holder 
of  the  equity  has  a  right  to  enforce,  and  he  has  that  right  only  as 
against  the  holder  of  the  legal  title. 

There  is  another  question  growing  out  of  this  section.  Is  the 
assignor  a  necessary  party?  It  would  seem  that  he  is ;  otherwise 
the  defendant  might  have  to  pay  the  claim  twice,  since  the  assignor 
would  not  be  bound  by  a  judgment  to  which  he  was  no  party. 
And  such  seems  to  be  the  opinion  in  New  York,  as  expressed  in 
one  case.  The  fact  of  the  assignment  is  a  fact  in  which  the 
assignor  has  an  interest.  "Where  the  law  directs  the  mode  and 
means  of  passing  the  legal  title  to  property,  there  the  grantors  are 
not  necessary  parties ;  the  plaintiff  must  prove  his  title  by  the  legal 
evidence;  but  where  there  is  no  such  legal  evidence,  there  the 
assignor  ought  to  be  before  the  court  in  order  to  protect  the  de- 
fendant from  a  second  recovery,  in  case  no  assignment  should  have 
been  made. 

This  question  came  before  the  district  court  in  Athens  county, 
at  its  September  term,  a.  d.  1858,  in  the  case  of  Arms  v.  Cooper. 
The  case  was  a  petition  in  error,  setting  forth  for  error  that  the 
subject  of  action  was  an  account,  and  the  assignee  had  not  made 
the  assignor  a  party.  The  court — Nash,  Peck,  and  "Whitman,  JJ. — 
held  that  the  assignor  was  a  necessary  party.  The  section  25  of 
the  code  provides  that  the  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest;  this  provision  requires  that  in  a  case 
like  the  present  the  assignee  must  prosecute  the  suit*in  his  own 
name,  he  being  the  real  party  in  interest,  since  the  money,  when 
collected,  is  coming  to  him;  but  this  construction  of  section  25  does 
not  settle  the  question  here  presented ;  it  simply  settles  that  the 
assignor  can  not  be  the  plaintiff  in  the  action.  The  question, 
whether  he  is  not  a  necessary  party,  still  remains  unanswered. 


42  PARTIES. 

Whether  he  is,  or  is  not,  a  necessary  party  will  depend  upon  a 
proper  construction  of  section  35. 

Section  35  is  in  these  words  :  "  Any  person  may  be  made  a  de- 
fendant, who  has,  or  claims,  an  interest  in  the  controversy  adverse 
to  the  plaintiff,  or  who  is  a  necesssry  party  to  a  complete  determi- 
nation or  settlement  of  the  question  involved  therein."  In  this 
action  there  were  two  questions  involved :  first,  the  truth  of  the  ac- 
count, and  second,  the  truth  of  the  assignment.  To  a  complete 
determination  or  settlement  of  the  first  question,  the  assignor  is  a 
necessary  party;  because,  unless  he  is  a  pai'ty,  the  finding  of  the 
assignment  will  not  protect  the  defendant  nor  conclude  the 
assignor.  If  the  assignor  denies  the  assignment,  he  can  sue  the 
debtor ;  and  the  debtor  must  then  prove  the  assignment  of  the  ac- 
count in  order  to  protect  himself  against  a  second  recovery.  The 
defendant  has  a  right  to  have  himself  protected  against  such  a  con- 
tingency, and  this  can  only  be  done,  by  requiring  the  assignor  to 
be  made  a  party  defendant  in  the  action,  by  which  the  possibility 
of  injury  to  him  is  avoided  without  inconvenience  or  injury  to  the 
plaintiff.  By  this  mode  of  proceeding,  the  rights  of  all  the  parties 
will  be  protected  and  concluded ;  the  truth  of  the  assignment  will 
be  conclusively  settled  and  determined  as  well  as  the  truth  of  the 
account ;  any  other  construction  of  the  code  will  leave  both  of  the 
questions  undetermined  so  far  as  the  rights  of  the  assignor  are 
concerned ;  unless  then  the  assignor  is  made  a  defendant,  there 
can  not  be  a  complete  determination  and  settlement  of  the  questions 
involved  in  the  action.  The  judgment  was  therefore  reversed,  and 
the  cause  remanded  for  further  proceedings. 

This  question  came  under  consideration  of  our  Supreme  Court  in 
the  case  of  Allen  v.  Miller,  11  Ohio  St.  374.  The  syllabus  does  not, 
however,  notice  this  point;  but  Brinkerhoff,  J.,  in  his  opinion 
does.  The  judge  assumes  that  the  assignee  of  a  chose  in  action  is 
the  legal  owner  of  the  thing  assigned,  and  that  the  interest  of  the 
assignor  and  assignee  is  identical.  In  both  these  positions,  I  think 
the  judge  is  wrong.  I  have  already  discussed  the  question  as  to 
the  title  of  the  assignee  of  a  chose  in  action  :  it  was  an  equity  be- 
fore the  code,  and  it  must  be  since  ;  as  the  code  does  not  assume  to 
change  or  create  rights,  nor  is  the  interest  of  assignee  and  assignor 
identical.  The  assignee  claims  to  hold  the  claim  adversely  to 
the  original  right  of  the  assignor,  and  he  must  aver  such  an 
assignment  from  the  holder  of  the  legal  title.  The  claim  of  the 
assignee  is  adverse  to  the  claim  of  the  assignor;  hence  when  a  bill 
in  chancery  was  filed  before  the  code  by  the  assignee  of  a  chose  in 


PARTIES.  43 


action,  the  assignee  was  complainant,  and  the  assignor  and  obligor 
defendants.  The  assumption  of  the  judge  is  that  every  assignment 
set  up  by  an  assignee  is  true,  and  can  not  be  disputed.  Is  this  true? 
Has  not  the  assignor  a  right  to  be  heard  on  that  question  before 
his  rights  shall  be  concluded?  and  the  rights  of  an  assignor  can  not 
be  concluded  by  a  decision  in  a  suit  to  which  he  was  no  party.  It 
is  then  clear  that  the  assignor  has  an  interest  adverse  to  the 
assignee,  as  well  as  the  payer  of  the  chose  in  action.  The  assignor 
has  the  legal  title,  the  assignee  an  equitable  one,  and  the  payer  has 
a  right  to  have  this  contention  settled  so  as  to  protect  him,  before 
he  can  be  compelled  to  pay  the  equitable  claimant  to  the  thing 
assigned.  It  is  not  true,  then,  that  the  assignor  should  have  been  a 
plaintiff;  he  should  have  been  a  defendant,  as  he  was  in  a  bill  in 
chancery  by  the  assignee  of  a  chose  in  action.  I  submit  that  the 
dicta  in  this  case  are  not  law,  and  that  the  question  is  open  for 
further  consideration. 

II.  As  to  the  Number  of  Plaintiffs. 

Sec.  36.  Of  the  parties  to  the  action,  those  who  are  united  in 
interest  must  be  joined  as  plaintiffs  or  defendants;  but  if  the  con- 
sent of  one  who  should  have  joined  as  plaintiff  can  not  be  obtained, 
he  may  be  made  a  defendant,  the  reason  being  stated  in  a  petition. 
2  S.  &  0.  956. 

Sec.  40.  When  the  determination  of  the  controversy  can  not  be 
had  without  the  presence  of  other  parties,  the  court  must  order 
them  to  be  brought  in.  2  S.  &  C.  956 ;  Burgoyne  v.  Trust  Co.,  5 
Ohio  St.  586;  Coolidgeu.  Parris,  8  Ohio  St.  594;  Slankerv.  Beards- 
ley,  9  Ohio  St.  589 ;  Eutledge  v.  Corbin,  10  Ohio  St.  478 ;  Haskins 
v.  Alcott,  13  Ohio  St.  210,  as  to  suits  in  firm  name. 


These  sections  do  not  seem  to  change  the  common  law  as  to 
plaintiffs.  All  persons,  holding  the  legal  right  to  sue,  must  join  as 
plaintiffs ;  if  not  joined,  it  will  be  ground  for  a  plea  in  abatement, 
or  a  demurrer,  if  the  fact  appear  on  the  face  of  the  petition.  The 
right  to  make  one,  who  ought  to  have  been  a  plaintiff,  a  defendant, 
must  be  applied  to  cases  where  there  is  a  several  interest  in  the 
same  property,  and  can  not  be  applied  to  joint  contractors  suing  on 
a  legal  claim.  In  such  cases,  each  party  has  the  right  to  use  the 
names  of  all  to  enforce  even  his  own  rights.  This  right  must  be 
limited  to  such  cases  as  would  have  justified  a  person  in  going  into 
a  court  of  equity  to  compel  a  co-contractor,  or  a  copartner,  to  aid 
in  collecting  a  debt.     To  extend  it  to  a  common-law  action,  triable 


44  PARTIES. 

by  a  jury,  would  introduce  innumerable  issuer  and  interminable 
confusion.  The  dispute  between  the  plaintiffs  would  be  a  con- 
troversy in  equity,  with  which  the  defendant  would  have  nothing 
to  do,  and  in  which  the  parties  would  have  no  right  to  involve 
him. 

The  code  has  to  provide  for  parties  in  actions  depending,  not 
only  on  legal,  but  upon  equitable  rights ;  the  language,  therefore 
which  is  broad  enough  for  the  latter,  must  be  too  broad  for  the 
former.  Hence  it  must  be  construed  with  reference  to  the  char- 
acter of  right  sought  to  be  enforced  :  if  the  right  is  a  legal  right  of 
action,  then  all  persons  jointly  interested  in  that  legal  right  must 
be  joined  as  plaintiffs  ;  if  the  right  is  an  equitable  one,  then  all  per- 
sons jointly  interested  in  that  equitable  right  must  be  plaintiffs. 
This  rule  will  apply  in  all  cases  of  a  legal  character,  and  in  some 
of  an  equitable  one. 

But  there  is  a  distinction  to  be  noticed.  Equitable  rights  are 
very  often  rights  inherent  in  particular  property.  It  is  a  proceed- 
ing ad  rem,  while  legal  proceedings  are  in  personam.  Where  the 
case  relates  to  particular  property,  whether  real  or  personal,  there 
all  persons  interested  in  the  disposition  of  that  property  are  neces- 
sary parties.  The  court  undertakes  to  convey  or  sell  the  title  to 
the  property,  and  it  wishes  to  make  a  clear  title  to  the  purchaser 
at  a  judicial  sale;  hence  every  person  who  has  a  right  in  such 
property,  must  be  before  the  court;  and  his  right  must  be  ad- 
judicated upon  and  adjusted  in  the  distribution  of  the  proceeds  of 
the  funds  or  property.  But  this  rule  is  limited  to  cases  where  the 
court  is  asked  to  dispose  of  property,  or  of  a  fund  in  dispute:  in 
such  cases  the  court  undertakes  to  convey  a  title  to  property,  and 
hence  all  having  any  title  or  interest  in  that  fund  or  property 
must  be  before  the  court;  but  where  the  dispute  or  controversy  is  a 
dispute  or  controversy  between  two  persons,  as  to  their  own  title 
or  rights  to  the  property,  there  no  other  need  be  parties ;  because 
a  settlement  of  their  dispute  can  not  affect  any  purchaser,  since  the 
court  orders  no  sale — nor  can  it  affect  the  rights  of  others.  For  in- 
stance :  A  claims  that  B  sold  him  a  tract  of  land,  and  asks  that  he 
convey.  This  dispute  is  confined  to  A  and  B ;  nor  can  B  defeat 
the  action  by  proving  that  he  had  no  title.  He  must  execute  his 
contract,  if  A  requires  it,  leaving  the  rights  of  others  to  be  asserted 
when  they  see  fit.  So  a  suit  to  recover  specific  property  merely 
settles  which  of  the  parties  has  the  better  right;  it  affects  the  rights 
of  no  other  person,  and  hence  no  other  person  is  either  a  necessary 
or  even  a  permissible  party. 


PARTIES.  45 

It  will  thus  be  seen  that  the  code  substantially  recognizes  the 
old  law  as  to  parties.  As  to  cases  founded  on  purely  legal  rights, 
Chitty's  Pleading  must  still  be  consulted  as  much  as  ever,  and  as 
to  cases  founded  on  equitable  rights,  Calvert  on  Parties  in  Equity 
is  just  as  important  as  ever ;  and  each  must  be  thoroughly  mas- 
tered by  the  legal  student,  if  he  ever  expects  to  practice  under- 
standing^. 

The  Court  of  Appeals  in  New  York,  in  the  case  of  Duby  v. 
Ericsson,  45  N.  Y.  786,  held  that  the  survivor  of  a  partnership 
could  assign  a  partnership  claim,  and  if  suit  is  brought,  it  was  to 
be  brought  in  his  name.  The  court  say  that  the  survivor  of  a  firm 
is  the  real  party  in  interest  to  a  demand  owned  by  or  due  to  the 
firm.  The  debtor  can  not,  when  sued  by  the  survivor,  object  that 
the  representatives  of  the  deceased  partner  are  not  made  parties 
with  the  survivor.  Their  equity  is  to  have  an  accounting  and  ad- 
justment of  the  affairs  of  the  partnership,  and  they  have  no  spe- 
cific interest  in  the  debt  sued  upon,  but  in  a  residuum,  which  is  un- 
certain and  contingent.  The  test  is,  was  the  demand  at  the  time 
of  the  death  of  the  copartner  a  copartnership  demand  ?  If  it  was, 
the  survivor  takes  the  legal  title  with  its  incidents,  however  limited 
his  equitable  interest  may  be,  and  notwithstanding,  on  an  account- 
ing, nothing  might  remain  to  him.     Clark  v.  Howe,  23  Maine,  560. 

Where  there  was  an  undertaking  given  in  four  attachment  suits 
levied  upon  the  same  property,  which  undertaking  was  to  plaintiffs 
in  the  four  suits,  and  afterward  a  fifth  suit  and  attachment  was  in- 
stituted, the  court  held  that  the  persons  named  in  the  undertaking 
and  the  subsequent  attaching  creditors  might  join  in  a  suit  on  said 
undertaking,  against  the  obligors  thereof.  The  court  say:  "The 
undertaking  being  to  the  first  attaching  creditors  for  the  forthcom- 
ing of  the  property  or  its  value,  the  undertaking  inured  to  the 
benefit  of  subsequent  attaching  creditors  upon  the  same  property, 
which  was  constructively  in  the  hands  of  the  sheriff;  and  such 
subsequent  attaching  creditors,  although  not  named  parties  in  the 
undertaking  as  payees,  had  a  beneficial  interest  in  the  undertaking, 
being,  in  their  order,  respectively  entitled  to  the  fruits  of  the  un- 
dertaking, the  proceeds  of  the  property  on  its  sale,  or  of  its  value 
so  secured  by  the  undertaking. 

"  It  therefore  follows  that  the  subsequent  attaching  creditors  had 
an  interest  in  the  subject  of  the  action,  and  in  obtaining  the  relief 
demanded  by  the  action  upon  the  undertaking,  and  might  properly 
be  joined  as  plaintiffs." 


46  PARTIES. 


Where  there  were  two  firms,  in  each  of  which  one  person  was  a 
member  of  both  firms,  the  Court  of  Appeals  in  New  York,  in  the 
case  of  Cole  and  others  v.  Beynolds  et  al,  18  N.  Y.  74,  held  that 
an  action  in  equity  might  be  prosecuted  by  the  members  of  one  of 
the  firms,  not  partners  in  the  other,  against  all  the  members  of  the 
other  firm,  including  the  one  that  was  their  partner,  and  an  account 
would  be  taken  between  the  two  firms,  if  necessary,  to  ascertain 
the  amount  due  from  the  one  firm  to  the  other.  In  delivering  the 
opinion  of  the  court,  Harris,  J.,  said :  "  The  defendants'  firm  are 
indebted  to  the  plaintiffs'  firm  upon  account  stated  and  settled  be- 
tween them.  This  fact,  standing  alone,  would  entitle  the  plaintiffs 
to  maintain  an  action  at  law.  But  there  is  another  fact  in  the  case, 
which,  upon  a  technical  rule  peculiar  to  the  common  law,  would 
have  defeated  such  action.  One  of  the  individuals  composing  the 
plaintiffs'  firm  is  also  a  member  of  the  defendants'  firm.  A  man 
can  not  sue  himself;  and  as,  at  common  law,  all  the  members  of  a 
firm  must  unite  in  bringing  an  action,  it  follows  that,  in  such  a 
case,  no  action  at  law  could  be  sustained. 

"  But,  in  equity,  this  technicality  does  not  stand  in  the  way  of 
justice.  It  is  enough  there  that  the  proper  parties  are  before  the 
court.  They  may  be  plaintiffs  or  defendants,  according  to  circum- 
stances, but,  being  before  the  court,  it  will  proceed  to  pronounce 
such  judgment  as  the  facts  of  the  case  require.  This  latter  rule  is 
obviously  the  dictate  of  common  law.  So  far  as  I  know,  it  prevails 
everywhere  else  except  at  common  law." 

We  have  in  Ohio  a  statute  which  authorizes  copartnerships 
formed  to  do  business  in  this  State  to  sue  and  be  sued  in  the  part- 
nership name.  Companies  suing  in  their  firm  name  must  aver  that 
it  is  a  company  formed  to  do  business  in  this  State.  A  failure  to 
make  this  averment  is  ground  for  a  demurrer  under  the  second 
subdivision  of  section  87  of  the  code.  Haskins  v.  Alcott  &  Horton, 
13  Ohio  St.  210. 

Representation. 

Sec.  37.  Where  the  question  is  one  of  common  or  general  inter- 
est of  many  persons,  or  where  the  parties  are  very  numerous,  and 
it  may  be  impracticable  to  bring  them  all  before  the  court,  one  or 
more  may  sue  or  defend  for  the  benefit  of  all.  (2  S.  &  C.  957.) 
Boosevelt  u.  Draper,  23  1ST.  Y.  327. 

This  is  merely  the  copy  of  a  rule  long  recognized  in  equity,  and 
hence  must  be  limited  to  such  cases  under  the  code.  Calvert  on 
Parties  in  Equity,  19.     In  these  cases,  one  or  more  is  authorized  to 


PARTIES.  47 

proceed  on  behalf  of  himself  and  others,  in  which  they  have  a 
common  interest.  One  creditor  is  authorized  to  file  a  bill  against 
the  personal  representative  of  a  decedent,  to  settle  up  the  estate, 
and  procure  distribution.  So  where  a  matter  is  necessarily  injuri- 
ous to  a  common  right,  the  majority  of  the  persons  interested  can 
neither  excuse  the  wrong,  nor  deprive  all  other  parties  of  their 
remedy  by  suit.  A  portion  of  the  parishioners,  on  behalf  of 
themselves  and  all  other  parishioners,  was  permitted  to  file  a  bill 
to  correct  certain  misconduct  in  managing  a  common  allotment ; 
and  this,  though  the  majority  acquiesced  in  the  wrong.  Bromley 
v.  Smith,  1  Sim.  9;  Calvert  on  Parties  in  Equity,  35.  So,  also,  one 
shareholder  of  a  canal,  on  behalf  of  himself  and  the  other  share- 
holders, filed  a  bill  to  set  aside  an  agreement  made  by  the  commis- 
sioners of  the  canal.  Gray  v.  Chaplin,  2  S.  &  S.  272,  vide  also  Jones 
v.  Garcia  del  Bio,  1  T.  &  B.  297 ;  Newton  v.  Egmont,  5  Sim.  137 ; 
Pearson  v.  Belcher,  4  Ves.  627  ;  Good  v.  Blewit,  13  Ves.  397 ;  Long 
v.  Younge,  2  Sim.  386. 

The  number  of  persons  must  be  large  to  justify  a  few  in  appear- 
ing for  all.  Calvert  on  Pai'ties  in  Equity,  39.  And  the  plaintiff 
must  appear  on  behalf  of  all  who  are  interested,  else  make  those 
on  whose  behalf  he  does  not  appear,  defendants. 

So  a  part  of  those  interested  may  be  made  defendants,  and  called 
upon,  as  a  portion  of  a  large  number  interested  in  the  same  ques- 
tion, to  defend;  so  many  must  be  sued  as  will  insure  a  fair  decision 
of  the  legal  right.  There  must  be  several  defendants  ;  one  will  not 
be  enough.  Calvert  on  Parties  in  Equity,  42  ;  Adair  v.  New  Biver 
Co.,  11  Ves.  444;  Mayor  of  York  v.  Pilkinton,  1  Atk.  284. 

A  complaint  which  states  that  B,  who  has  an  interest  in  com- 
mon with  persons  whom  it  would  be  impracticable  to  bring  be- 
fore the  court  on  account  of  their  great  number  and  who  sues  for 
the  benefit  of  the  whole,  complains,  etc.,  is  sufficient.  Sourse  v. 
Marshall,  23  Ind.    194. 

But  the  right  of  a  few  to  represent  the  whole  is  by  no  means 
confined  to  the  instances  of  creditors  and  legatees  (6  Ves.  779) ; 
and  the  necessity  of  the  case  has  induced  the  court,  especially  of 
late  years,  frequently  to  depart  from  the  general  rule,  in  cases 
where  a  strict  adherence  to  it  would  probably  amount  to  a  denial 
of  justice,  and  allow  a  few  persons  to  sue  on  behalf  of  great  num- 
baving  the  same  interest.  Loyd  v.  Loaring,  6  Cumner's  Ves. 
77:> ;  Willis  v.  Henderson,  4  Scam.  20;  Wendell  u.Van  Bansselaer, 
1  Johns.  Ch.  349  ;  Hallett  v.  Ilallett,  2  Paige,  18-20  ;  Story  Eq.  PL, 
sec.  94.     Thus  part  of  the  proprietors  of  a  trading  undertaking, 


48  PARTIES. 

where  the  shares  had  been  split  or  divided  into  eight  hundred,  were 
permitted  to  maintain  a  suit  on  behalf  of  themselves  and  others, 
for  an  account  against  some  of  their  copartners,  without  bring- 
ing the  whole  before  the  court  (Chancey  v.  May,  Prec.  Ch.  592), 
because  it  would  have  been  impracticable  to  make  them  all  parties 
by  name,  and  there  would  be  continual  abatement  by  death  and 
otherwise,  and  no  coming  at  justice,  if  they  were  to  be  made  par- 
ties ;  and  so  where  all  the  inhabitants  of  a  parish  had  rights  of 
common  under  a  trust,  a  suit  by  one  on  behalf  of  himself  and  the 
other  inhabitants  was  admitted  (Blaekham  v.  The  Warden  and 
Society  of  Sutton  Coldfield,  1  Ch.  Cas.  269) ;  and  one  owner  of  lands 
in  a  township  has  been  permitted  to  sue  on  behalf  of  himself  and 
others  to  establish  a  contributory  modus  for  all  lands  there.  Chay- 
tor  v.  Trinity  College,  3  Anst.  841.  Upon  the  same  principle  a 
bill  was  allowed  by  the  captain  of  a  privateer  on  behalf  of  himself 
and  of  all  others,  the  mariners  and  persons  who  had  signed  certain 
articles  of  agreement  with  the  owners,  for  an  account  and  distribu- 
tion of  the  prizes  made  by  the  ship.  Good  v.  Blewitt,  13  Ves.  397  ; 
West  v.  Randall,  2  Mason,  193,  194.  And  in  Lloyd  v.  Loaring,  6 
Yes  773,  Lord  Eldon  held  that  some  of  the  members  of  a  lodge  of 
Freemasons,  or  of  one  of  the  inns  of  court,  or  of  any  other  numer- 
ous body  of  persons,  might  sustain  a  suit  on  behalf  of  themselves 
and  others  for  the  delivery  up  of  a  chattel  in  which  they  were  all 
interested.     Cockburn  v.  Thompson,  16  Ves.  321. 

It  is,  moreover,  generally  necessary,  in  order  to  enable  a  plaint- 
iff to  sue  on  behalf  of  himself  and  others  who  stand  in  the  same 
relation  with  him  to  the  subject  of  the  suit,  that  it  should  appear 
that  the  relief  sought  by  him  is  beneficial  to  those  whom  he  under- 
takes to  represent.  Gray  v.  Chaplin,  2  S.  &  S.  267  ;  Attorney- 
General  v.  Heelis,  2  S.  &  S.  77  ;  Bainbridge  v.  Burton,  2  Beav.  539 ; 
Hallett  v.  Hallett,  2  Paige,  15 ;  Story  Eq.  PL,  sec.  130,  et  seq.,  sees. 
79,  94.  And  where  it  does  not  appear  that  all  the  persons  intended 
to  be  represented  are  necessarily  interested  in  obtaining  the  relief 
sought,  such  a  suit  can  not  be  maintained.  Van  Sandau  v.  Moore, 
1  Eus.  465.  Thus  where  a  plaintiff,  being  one  of  the  subscribers 
to  a  loan  of  money  to  a  foreign  state,  filed  a  bill  on  behalf  of  him- 
self and  all  other  subscribers  to  that  loan,  to  rescind  the  contracts 
of  subscription,  and  to  have  the  subscription  moneys  returned, 
Lord  Eldon  held  that  the  plaintiff  was  not  entitled  in  that  case  to 
represent  all  the  other  subscribers,  because  it  did  not  necessarily 
follow  that  every  subscriber  should,  like  him,  wish  to  retire  from 
the  speculation,  and  every  individual  must,  in  that  respect,  judge 


PARTIES.  49 

for  himself.  Jones  v.  Del  Eio,  1  Turn.  297.  And  upon  the  same 
principle,  one  of  the  inhabitants  of  a  district,  who  claimed  a  right 
to  be  served  with  water  by  a  public  company,  can  not  file  a  bill  on 
behalf  of  himself  and  the  other  inhabitants,  to  compel  that  com- 
pany to  supply  water  to  the  district  upon  particular  terms,  because 
what  might  be  reasonable  with  respect  to  one  might  not  be  so 
with  regard  to  the  other.  Weale  v.  West  Middlesex  Water  Works 
1  J.  &  W.  370 ;  Beaumont  v.  Meredith,  3  V.  &  B.  181.  Where' 
however,  it  is  perfectly  clear  that  the  object  of  the  suit  is  for  the 
benefit  of  all  the  parties  interested,  a  few  may  maintain  a  bill  on 
behalf  of  themselves  and  others,  even  though  the  majority  disap- 
prove of  the  institution  of  the  suit.  Momley  y.  Smith,  1  Sim.  8. 
Upon  the  same  principle,  in  Small  v.  Attwood,  1  Younge,  407,  a  few 
shareholders  of  a  joint-stock  company  were  permitted  to  maintain 
a  suit  on  behalf  of  themselves  and  other  shareholders,  for  the  pur- 
pose of  rescinding  a  contract,  it  being  manifest  from  the  evidence 
that  it  was  for  the  benefit  of  all  the  shareholders  that  the  contract 
should  be  rescinded.  Walworth  v.  Holt,  4  M.  &  C.  635 ;  Taylor 
v.  Salmon,  4  Myl.  &  Cr.  134.  It  does  not  appear,  moreover,  that 
the  fact  of  a  company  being  incorporated  by  act  of  Parliament, 
necessarily  prevents  individual  members  of  the  corporation  suing 
on  behalf  of  themselves  and  the  other  members  of  the  company. 
Foss  v.  Harbottle,  2  Hare,  491  ;  Preston  v.  Grand  Collyer  Dock 
Co.,  11  Sim.  1  ;  Leigh  v.  Thomas,  2  Yes.  312  ;  Baldwin  v.  Law- 
rence, 2  S.  &  S.  18;  Hales  v.  Pomfret,  Daniel  Ex.  142;  1  Daniel 
Ch.  Pr.  286. 

Walworth,  Ch.,  in  Hallett  v.  Hallett,  2  Paige,  15-18,  uses  the  fol- 
lowing language  on  the  subject :  "  Who  are  necessary  parties  to  a 
suit,  is  frequently  a  question  of  difficulty ;  and  it  is  impossible  to 
reconcile  all  the  various  decisions  on  this  subject  either  with  estab- 
lished principles  or  with  each  other.  But  there  are  certain  gen- 
eral rules  which  must  serve  as  a  guide  to  the  court  on  a  subject 
that  in  some  measure  depends  upon  the  exercise  of  a  sound  discretion. 
It  is  a  general  rule  in  equity  that  all  persons  materially  interested 
in  the  subject  matter  of  the  suit,  either  as  complainants  or  defend- 
ants, ought  to  be  made  parties,  in  order  that  a  complete  decree  may 
be  made,  which  will  bind  the  rights  of  all,  and  prevent  a  useless  multi- 
plication of  suits.  But  to  this  rule  there  are  many  exceptions.  It  is 
a  rule  adopted  for  the  convenient  administration  of  justice,  and  is 
dispensed  with  when  it  becomes  extremely  difficult  or  inconvenient. 
Wendell  v.  Yan  Eenssellaer,  1  Johns.  Ch.  349.  It  is  on  the  princi- 
ple of  this  exception  that  the  circuit  courts  of  the  United  States, 

VOL.  I — 4 


50  PARTIES. 

which  are  courts  of  limited  jurisdiction  with  regard  to  parties,  are 
enabled  to  exercise  equity  jurisdiction  in  many  cases,  when  a 
strict  adherence  to  the  rule  would  compel  the  complainants  to 
resort  to  the  State  courts.  Elmendorf  v.  Taylor,  10  Wheat.  152  ; 
Harding  v.  Handy,  11  Wheat.  103.  But  this  exception  does  not 
extend  to  those  cases,  where  the  rights  of  persons  not  before  the 
court  are  so  inseparably  connected  with  the  claims  of  the  parties 
litigant,  that  no  decree  can  be  made  without  materially  affecting 
the  rights  of  the  former.  Mallow  v.  Hinde,  12  Wheat.  193 ;  Ward 
v.  Arredonds,  1  Paine,  410;  1  Hopkins,  213,  S.  C.  If  there  are 
many  parties  standing  in  the  same  situation,  as  to  their  rights  and 
claims  upon  a  particular  fund,  and  where  the  shares  of  a  part  can 
not  be  determined  until  the  rights  of  all  the  others  are  settled  or 
ascertained,  as  in  cases  of  creditors  of  an  insolvent  estate  or  resid- 
uary legatees,  all  the  parties  interested  in  the  fund  must  in  gen- 
eral be  brought  before  the  court,  so  that  there  may  be  but  one  ac- 
count and  one  decree  settling  the  rights  of  all.  And  if  it  appears 
on  the  face  of  the  complainants'  bill  that  an  account  of  the  whole 
fund  must  be  taken,  and  that  there  are  other  parties  interested  in 
the  distribution  thereof,  to  whom  the  defendants  would  be  bound  to 
render  a  similar  account,  the  latter  may  object  that  all  who  have 
a  common  interest  with  the  complainants  are  not  before  the  court. 
In  these  cases,  to  remedy  the  practical  inconvenience  of  making 
a  great  number  of  parties  to  the  suit,  and  compelling  those  to  liti- 
gate, who  might  otherwise  make  no  claim  upon  the  defendants  or 
the  fund  in  their  hands,  a  method  has  been  devised  of  permitting 
the  complainants  to  prosecute  in  behalf  of  themselves  and  all 
others  standing  in  the  same  situation,  who  may  afterward  elect  to 
come  in  and  claim  as  parties  to  the  suit,  and  bear  their  proportion 
of  the  expenses  of  the  litigation.  If  such  parties  neglect  to  come  in 
under  the  decree,  after  a  reasonable  notice  to  them  for  that  pur- 
pose, the  fund  will  be  distributed  without  reference  to  any  un- 
liquidated or  unsettled  claims,  which  they  might  have  had  upon 
the  same.  But  if  the  rights  of  such  absent  parties  are  known  and 
ascertained  by  the  proceedings  in  the  suit,  provisions  will  be  made 
for  them  in  the  decree.  Anonymous,  9  Price,  210.  In  either  case, 
the  court  will  protect  the  defendants  against  any  further  litigation 
in  respect  to  the  fund.     Farrell  v.  Smith,  2  Ball  &  Beat.  337. 

"In  Brown  v.  Pickets,  3  Johns.  Ch.  553,  Chancellor  Kent  seems 
to  suppose  the  case  of  residuary  legatees  an  exception  to  the  gen- 
eral rule,  that  one  claimant  of  the  fund  may  file  a  bill  in  behalf  of 
himself  and  all  others  having  a  common  interest ;  but  every  reason 


PARTIES.  51 

which  could  possibly  be  urged  against  permitting  one  residuary 
legatee  to  sue  for  himself  and  all  others,  without  making  them 
actual  parties,  was  equally  applicable  to  the  case  then  before  him 

for  adjudication The   correctness  of   the  opinion  of 

Chancellor  Kent  on  this  particular  point  is  questioned  by  my  im- 
mediate predecessor  in  the  case  of  Kettle  and  wife  v.  Crary,  1 
Paige,  417,  n.  .  .  .  I  can  see  no  reason  for  excepting  residuary 
legatees  from  the  application  of  the  rule,  and  can  find  no  case,  in 
which  the  question  has  arisen,  and  where  it  has  been  directly  de- 
cided that  a  part  may  not  sue  on  behalf  of  themselves  and  others." 

Married  Women. 
Sec.  28.  Where  a  married  woman  is  a  party,  her  husband  must 
be  joined  with  her,  except  that  when  the  action  concerns  her  sep- 
arate property,  or  is  between  herself  and  her  husband,  she  may 
sue  or  be  sued  alone  ;  and  in  every  such  case  her  separate  property 
shall  be  liable  for  any  judgment  rendered  therein  against  her,  to 
the  same  extent  as  would  the  property  of  her  husband,  were  the 
judgment  rendered  against  him.  But  in  no  case  shall  she  be  re- 
quired to  prosecute  or  defend  by  her  next  friend.  Passed  April 
18,  1870. 


This  new  section  changes  somewhat  the  prior  provisions  of  the 
code.  The  general  provision  that  husband  and  wife  must  join  in 
actions  to  which  she  is  a  necessary  party  applies  to  all  cases,  ex- 
cept: 1.  Actions  concerning  her  separate  property.  2.  Actions  be- 
tween husband  and  wife.  3.  Any  judgment  obtained  against  her 
can  be  levied  on  her  separate  property.  4.  She  sues  in  her 
own  name  without  the  intervention  of  her  next  friend.  By  this 
section,  the  wife,  as  regards  her  own  estate,  is  clothed  with  all  the 
rights  and  made  liable  to  the  full  extent  of  an  unmarried  woman. 
This  term,  "separate  property,"  in  equitj*  had  a  technical  meaning — 
property  conveyed  to  a  trustee  for  her  separate  use,  in  which  she 
had  only  an  equity.  Property  held  by  a  married  woman  in  her 
own  right  was  never  called  separate  property:  her  husband  had 
certain  legal  rights  in  such  property  and  could  control  the  use  of 
her  real  estate,  and  reduce  to  possession  her  personal  property.  If 
this  language  is  to  be  strictly  construed,  it  would  have  little  ap- 
plication to  married  women  in  this  country,  where  separate  prop- 
erty, in  the  English  meaning  of  those  words,  hardly  exists  in  this 
country.  But  by  separate  property,  the  legislature  must  have 
meant  property,  the  legal  title  to  which  was  in  the  wife.     Under 


52  PARTIES. 


our  legislation,  such  property  is  substantially  declared  to  be  her 
separate  property,  and  the  control  over  the  same  is  taken  away 
from  the  husband  and  vested  in  the  wife.  Hence  separate  prop- 
erty of  the  wife  is  all  property,  whether  real  or  personal,  the  legal 
or  equitable  title  to  which  is  vested  in  her  ;  all  such  property,  there- 
fore, is,  under  our  legislation,  her  separate  property,  and  in  regard 
to  that  property  she  can,  if  she  see  fit,  sue  alone,  or  she  can  be  sued 
alone,  as  &  feme  sole,  for  controversies  relating  to  the  same,  and  all 
contracts  made  by  her  about  or  affecting  the  same.  As  to  this 
property,  she  is  in  law  regarded  as.  a  feme  sole. 

There  are  still  a  class  of  cases  where  husband  and  wife  must 
join;  such  are  actions  of  slander,  assault  and  battery,  and  all 
other  injuries  to  her  person.  In  these,  husband  and  wife  must  join 
as  plaintiffs,  and  be  joined  as  defendants,  where  the  wife  can  be 
sued  for  her  torts.  So  where  land  was  bought  and  conveyed  to 
the  wife,  and  the  husband  and  wife  give  their  note  for  the  purchase 
money,  and  a  mortgage  to  secure  it  on  the  land,  it  was  held  that 
both  husband  and  wife  were  proper  parties,  because  of  his 
liability  on  the  note  in  case  of  a  deficiency  on  the  sale  of  the  land, 
and  the  wife,  because  she  held  the  legal  title,  and  both  were  mort- 
gagors. Conde  v.  Shephard,  4  Pr.  75.  If  there  is  a  joint  interest 
with  the  husband  in  the  property,  he  must  be  a  party,  or  the  suit 
would  be  defective;  but,  if  the  estate  was  equitably  her  own,  or 
solely  her  own,  a  next  friend,  prior  to  the  alteration  of  the  code, 
other  than  the  husband,  was  essential.  Smith  v.  Kearney  et  al.,  9 
Pr.  466 ;  Siezel  v.  Phelps,  7  Simon.  239  ;  Simons  v.  Harwood,  1 
Keene,  7;  England  v.  Downs,  1  Beavan,  96;  Bowers  v.  Smith,  10 
Paige,  201 ;  Alston  v.  Jones,  3  Barb.  397 ;  9  Paige,  257  ;  Howland 
v.  Fort  Edwards  Paper  Mill  Co.,  8  Pr.  505  ;  Towner  v.  Towner,  7 
Pr.  387.  If  the  wife  is  a  minor,  I  suppose  she  must  still  sue  by 
next  friend  or  guardian,  and  defend  by  guardian, as  is  provided  for 
in  section  30. 

By  section  29  it  is  provided  that  if  husband  and  wife  be  sued 
together,  the  wife  may  defend  for  her  own  right ;  and  if  the  hus- 
band neglect  to  defend,  she  may  defend  for  his  right  also.  As  this 
section  28  is  merely  permissive,  she  may  sue  or  be  sued 
alone.  I  suppose  the  husband  may  be  sued  with  his  wife  in  any 
action,  where  at  common  law  he  would  be  liable  to  be  sued  with 
his  wife.  But  where  the  wife  makes  a  contract  herself,  touching 
her  separate  property,  the  husband  can  not  be  liable,  be- 
cause at  common  law  the  wife  has  no  power  to  bind  either  herself 
or  her  husband  by  her  separate  contracts ;  and  she  has  now  no 


PARTIES.  53 

power  to  bind  herself  personally,  only  to  bind  her  separate  prop- 
erty. An  action,  therefore,  on  such  a  contract,  would  be  one  in 
equity  to  reach  the  separate  property,  and  not  for  a  personal  judg- 
ment. 

In  Slanker  v.  Beardsley,  9  Ohio  St.  589,  the  court  held  that  a 
married  woman  might  maintain  an  action  against  parties,  who 
bought  property  exempt  from  execution  on  a  sale  by  the  husband. 
The  court  say  the  act  of  April  17,  1857,  securing  to  married 
women  such  personal  property  as  may  be  exempt  from  execution, 
etc.;  prohibits  the  husband  from  the  sale  of  such  property  without 
the  consent  of  his  wife,  and  that,  if  sold  by  the  husband,  the  wife 
could  maintain  an  action  in  her  own  name  against  such  purchasers, 
either  to  recover  the  specific  property  or  to  recover  the  value  of 
the  same.     Colwell  v.  Cooper,  15  Ohio  St.  279,  S.  P. 

Where  the  husband  and  wife  join  in  a  contract  for  the  sale  of 
her  land,  and  in  pursuance  of  the  terms  of  the  contract  their  joint 
deed  for  the  land,  duly  executed  and  acknowledged  by  them,  is 
placed  in  the  hands  of  a  third  person,  to  be  delivered  by  him  to 
the  purchaser  upon  his  paying  the  purchase  money,  the  husband 
and  wife  may  enforce  a  specific  performance  of  the  contract  on  the 
part  of  the  purchaser.  Farley  v.  Palmer  and  wife,  20  Ohio  St. 
223. 

Where  the  husband  bought  land  of  A,  and  by  fraudulent  repre- 
sentations paid  largely  more  than  it  was  worth,  and  the  land  was 
conveyed  to  the  wife,  though  paid  for  by  the  husband,  it  was  held 
that  the  husband  alone  could  sue  for  the  fraud,  and  it  was  error  to 
join  his  wife  with  him  in  such  action.  Partages  v.  O'Neils,  13 
Ohio  St.  72. 

In  Coolidge  and  wife  v.  Parris,  8  Ohio  St.  594,  it  was  held  that 
in  an  action  against  husband  and  wife  for  an  assault  and  battery 
committed  by  her,  she  can  not  control  the  management  of  the  de- 
fense or  compi'omise  the  action  against  the  wishes  of  the  husband ; 
and  that,  if  he  confess  judgment  for  himself  and  wife,  the  court 
will  not  interfere  at  her  instance,  because  she  did  not  consent,  but 
objects  to  the  compromise.  This  case  shows  that  in  those  actions, 
where  husband  and  wife  must  join,  the  husband  has  the  control 
of  the  action.  In  this  class  of  cases,  the  separate  property  of  the 
wife  is  not  liable  for  the  judgment,  unless  it  was  so  liable  before 
the  code. 

Where  a  married  woman  holds  land  by  a  lease  to  herself  while 
married,  she  may  in  her  own  name  maintain  an  action  to  recover 


54  PARTIES. 

the  possession  thereof  against  one  who  has  ejected  her  therefrom. 
Dorby  v.  Callaghan,  16  N.  Y.  71. 

In  an  action  on  an  award  made  in  the  wife's  favor  touching  her 
separate  property,  the  wife  alone  should  be  plaintiff,  and  not  hus- 
band and  wife.     Palmer  and  wife  v.  Davis,  28  N-.  Y.  242. 

So  an  action  to  recover  damages  done  to  the  wife's  land,  must  be 
in  the  name  of  the  wife,  but  if  the  husband  is  joined,  his  name 
may  be  stricken  out  as  surplusage.  Ackley  v.  Tarbox,  31  N.  Y. 
564. 

The  New  York  code  is  like  ours  in  this — that  the  language  is  she 
"  may'''  sue  alone.  These  case  seem  to  construe  the  word  "  may"  as 
"  must."  Such  is  the  construction  of  Johnson,  J.,  in  the  last  case. 
He  says  :  "  The  code  (sec.  114)  provides  that  when  a  married  wo- 
man is  a  party  to  an  action,  her  husband  must  join,  except  in  two 
cases:  1.  Where  the  action  concerns  her  separate  property. 
2.  Where  the  action  is  between  herself  and  her  husband.  In  these 
two  cases  it  is  provided  she  may  sue  alone  without  any  guardian 
or  next  friend.  The  intent  and  meaning  of  this  section  of  the 
code,  to  my  mind,  is  very  plain.  When  the  wife  is  a  party  the 
husband  is  to  be  joined  in  all  kind  of  actions,  and  whatever  may 
be  the  subject  of  the  litigation,  except  in  two,  and  in  those  two  he 
is  not  to  be  joined,  but  she  is  to  sue  alone."  Whether  this  is  a 
true  construction  of  the  word  may  in  this  section  may  admit  of 
argument.  If  the  wife  chooses  to  join  her  husband,  she  gives  him 
some  rights  possibly  he  would  not  have  if  she  sued  alone  in  her 
own  name.  Whether  both  join,  or  the  wife  sues  alone,  is  a  matter 
of  indifference  to  the  defendant ;  his  rights  are  the  same  in  either 
case.  The  New  York  courts  seem,  however,  to  adopt  Johnson's 
opinion  on  this  word  in  the  code.  In  Ohio,  no  ruling  has  been 
made  upon  it. 

When  a  woman  can  be  sued  and  how,  for  debts  contracted  by 
her,  there  is  some  conflict  in  the  New  York  decisions.  The  case 
of  the  Corn  Exchange  Ins.  Co.  v.  Babcock,  42  N.  Y.  613,  is 
the  last  case  on  that  question.  That  was  a  special  action  averring 
that  the  wife  indorsed  the  paper  of  her  husband  as  security,  had 
separate  property,  and  that  she  by  such  act  bound  her  separate 
property.  A  majority  of  the  court  held  that  a  personal  judgment 
might  be  rendered  against  her,  while  Earl,  J.,  dissented.  Earl 
held  that  the  equitable  charge  thus  created  by  the  defendant  could 
only  be  enforced  in  equity.  The  case  of  Yale  v.  Dederer,  18  N.  Y. 
265,  was  an  equitable  proceeding  to  charge  the  property  of  the 
wife.     It  was  here  held  that  the  wife  did  not  charge  her  separate 


PARTIES.  55 


estate  by  the  execution  of  a  promissory  note  with  her  husband  and 
as  his  surety,  not  for  her  own  benefit  or  the  enhancement  of  her 
estate.  Comstock,  J.,  says  :  "  The  contract  of  a  married  woman 
being  void  at  law,  the  difficulty  of  subjecting  her  estate  in  equity 
to  the  payment  of  a  note  or  bond  given  by  her  was  felt  by  the 
courts  to  be  very  great.  The  difficulty  was,  however,  overcome, 
and  the  rule  must  now  be  regarded  as  settled,  that  the  written  en- 
gagements of  a  married  woman,  entered  into  on  her  own  account, 
are  to  be  satisfied  out  of  her  separate  estate.  North  American  Coal 
Co.  v.  Dyett,  7  Paige,  9 ;  Heathly  v.  Thomas,  15  Yes.  596 ;  Bullpin 
v.  Clarke,  17  Vcs.  3G5  ;  Stuart  v.  Kirkwall,  3  Madd.  287  ;  Owens 
v.  Dickenson,  Craig  &  Phil.  '48  ;  2  Story  Eq.,  sec.  1400.  This  case 
is  in  direct  conflict  with  the  decision  in  the  case  of  Corn  Exch. 
Ins.  Co.  v.  Babcock,  42  N.  Y.  C13.  This  last  case  was  decided  by 
a  divided  court ;  Hunt,  Lott,  and  Leonard  against  the  dissenting 
opinions  of  Gray  and  Earl.  The  case  of  Yale  v.  Dederer  came  up 
again,  and  is  reported  in  22  N.  Y.  450,  when  it  was  held  that  if  she 
did  intend  to  charge  her  separate  estate  it  made  no  difference  in 
the  law  of  the  case.  The  law  is  thus  pretty  unsettled  in  New 
York. 

"Under  our  code,  I  do  not  think  this  question  can  arise.  She  is 
to  sue  or  be  sued  alone,  only  when  the  action  concerns  her  sepa- 
rate property  ;  and  her  separate  property  shall  be  liable  for  any 
judgment  rendered  therein  against  her.  The  suit  is  to  be  about 
her  separate  property,  and  that  property  is  to  be  liable.  Now,  a 
married  woman's  contracts  are  void,  but  her  contracts  about  her 
separate  estate  are  in  equity  a  claim  ad  rem,  which  in  equity  can 
be  enforced  against  her  separate  estate ;  and  it  can  be  sold  or  rented 
to  pay  any  such  claim.  Under  our  code,  then,  the  suit  against  a 
married  woman  on  contracts  touching  her  separate  property  must 
be  in  equity  to  subject  the  land  to  their  payment," 

The  petition  in  the  case  of  Logan  v.  Thrift  and  wife,  20  Ohio  St. 
62,  is  one  in  equity  seeking  simply  to  charge  the  wife's  land  for  a 
note  executed  by  her  with  her  husband  with  the  design  of  charging 
her  separate  estate.  The  petition  also  described  the  land  owned 
by  the  wife  and  against  which  the  plaintiff  sought  to  enforce  his 
claim.  The  opinion  of  the  court  assumes  that  the  remedy  is  against 
the  separate  estate  of  the  wife,  and  not  against  her  personally ; 
and  in  my  opinion  is  clearly  the  law,  and  in  a  proper  case,  the 
remedy  is  one  in  equity  to  reach  the  fund,  and  not  an  action  where 
a  personal  judgment  can  be  rendered.  The  New  York  court  seems 
to  make  all  the  contracts  of  a  married  woman  valid  and  binding 


56  PARTIES. 

upon  her,  (and  yet  they  are  not  so)  upon  a  condition  that  she  holds 
separate  property.  How  much  must  she  have  to  render  her  con- 
tracts valid  ?  The  proposition  is  absurd  in  that  form ;  the  equita- 
ble doctrine  is  the  true  one  and  has  reason  in  its  favor.  It  leaves 
the  law  of  contracts  as  it  is,  and  yet  leaves  the  wife's  estate  liable 
for  her  debts  made  in  a  proper  case. 

Infants. 

Sec.  30.  The  action  of  an  infant  must  be  brought  by  his  guardian 
or  next  friend.  When  brought  by  his  next  friend,  the  court  has 
power  to  dismiss  it,  if  it  is  not  for  the  benefit  of  the  infant,  or  to 
substitute  the  guardian  of  the  infant,  or  any  person,  as  next  friend. 

Sec.  31.  The  guardian,  or  next  friend,  is  liable  for  all  costs,  and 
when  insolvent,  the  court  may  require  security  for  costs. 

This  is  the  old  law  in  chancery,  and  needs  no  explanation.  In 
Hurlbert  v.  Newell,  4  Pr.  93,  it  was  held  that,  in  a  joint  suit  by 
husband  of  age  and  wife  a  minor,  no  guardian  for  the  wife  was 
necessary.  Cook  v.  Eowdon,  6  Pr.  233.  The  next  friend  for  plaint- 
iff need  not  be  appointed  by  the  court.     Ibid. 

III.  Defendants. 

Little  need  be  said  on  this  head,  beyond  what  has  been  said  in 
reference  to  parties  plaintiffs.  The  persons  against  whom  a  legal 
right  exists  must  be  made  parties  defendants.  This  is  the  rule  as 
to  all  actions  founded  on  legal  rights. 

The  rule  in  cases  in  equity  is  equally  clear.  All  persons  against 
whom  relief  is  sought  must  be  defendants,  and  all  others  interested 
in  the  subject  must  be  either  plaintiffs  or  defendants.  It  is  suffi- 
cient here  to  refer  to  that  ablest  of  works  on  that  subject — Calvert 
on  Parties  in  Equity — without  undertaking  to  digest  its  various 
rules,  which  would  be  essentially  of  no  use  to  the  profession. 

The  code  has  been  amended  as  to  defendants  severally  liable  on 
a  contract  including  bills  of  exchange  and  promissory  notes.  By 
the  amended  section  58,  April  16,  1871,  it  is  provided  that  when 
the  action  is  rightly  brought  in  any  county,  according  to  the  pro- 
visions of  title  four,  a  summons  shall  be  issued  to  any  other 
county,  against  any  one  or  more  of  the  defendants,  at  the  plaintiff's 
request  provided  that  no  maker  or  drawer  of  any  instrument  for 
the  payment  of  money  only  shall  be  held  liable  in  an  action 
thereon,  except  on  cognovit,  in   any  county  other  than   one   in 


PARTIES.  57 

which  he  or  some  one  of  the  joint  makers  or  drawers  of  the  in- 
strument resides  or  is  summoned. 

This  amendment  secures  makers  or  drawers  of  the  instrument 
against  being  sued  otherwise  than  they  would  be  if  the  suit  was 
alone  one  against  the  makers  or  drawers.  The  prior  provision  al- 
lowed all  the  parties  to  bills  of  exchange  and  promissory  notes, 
whether  makers,  drawers,  or  indorsers,  to  be  sued  in  any  county 
where  any  one  of  the  parties  on  the  bill  could  be  found.  Paper 
held  in  Cleveland  was,  therefore,  often  indorsed  to  one  residing 
there,  and  he  to  another  person,  so  that  service  might  be  had  on 
him,  and,  in  that  way,  on  parties,  as  makers  or  drawers,  residing 
in  Cincinnati,  or  elsewhere  in  the  State.  But  now  no  maker  or 
drawer  can  be  sued  otherwise  than  if  the  action  was  against  the 
makers  or  drawers.  If  service  is  obtained  on  one  joint  maker  or 
drawer  in  one  county,  service  may  then  be  legally  had  on  any 
other  joint  maker  or  drawer  in  any  other  county. 

Since  the  first  edition  of  this  work,  some  cases  have  been  decided, 
giving  a  construction  to  this  section  of  the  code.  In  Vorhis  v. 
Childs'  Ex'r,  17  N.  Y.  354,  the  Court  of  Appeals,  in  New  York, 
decided  that  the  administrator  or  executor  of  a  deceased  contractor 
could  not  be  joined  in  an  action  thereon  with  the  surviving  joint 
contractor.  But  our  court  has  held,  in  Burgoyne,  Adm'r,  v.  Ohio 
Life  Insurance  and  Trust  Co.,  5  Ohio  St.  586,  that,  under  section 
90  of  the  administration  act,  the  administrator  of  a  deceased  joint 
contractor  could  be  joined  as  a  defendant  with  bis  surviving  joint 
contractors ;  but  a  several  judgment  is  to  be  rendered  against  him 
as  such  administrator.  But  it  would  seem  that  this  joinder  could 
take  place  only  in  cases  where  the  administrator  of  the  deceased 
obligor  denies  the  liability  of  the  estate,  and  refuses  to  allow  the 
claim  as  a  valid  one  against  the  estate ;  in  all  other  cases,  no  action 
can  be  maintained  against  an  administrator,  except  under  certain 
contingencies.  The  survivors  may  be  sued  at  any  time,  but  the 
administrator  can  not. 

In  Carman  v.  Plass  et  al.,  23  N.  Y.  286,  it  was  held  that  an  action 
lies  against  a  lessor,  and  one  who  is  a  party  to  a  lease,  and  therein 
guarantees  the  performance  of  the  lessor's  covenant.  "  This  case," 
says  Denio,  J.,  in  delivering  the  opinion  of  the  court,  "  comes  pre- 
cisely within  the  language  of  section  120  of  the  code  of  procedure, 
which  provides  that  '  persons  severally  liable  upon  the  same  obli- 
gation or  instrument,  including  the  parties  to  bills  of  exchange 
and  promissory  notes,  may  all,  or  any  of  them,  be  included  in  the 
same  action,  at  the  option  of  the  plaintiff.'      I  see  no  reason  to 


58  PARTIES. 

doubt  that  it  is  likewise  within  the  meaning  and  intention  of  the 
enactment.  It  relates  expressly  to  several,  and  not  to  joint  liabil- 
ities. The  latter  do  not  require  the  aid  of  a  special  provision,  for 
a  plurality  of  joint  contractors  always  could  be,  and  generally  were 
required  to  be,  sued  together ;  and  provision  was  made  in  the  act 
concerning  joint  debtors  for  omitting  to  serve  process  on  all,  if  the 
creditor  should  so  elect.  But,  though  this  were  otherwise,  the  pro- 
vision in  question  relates,  in  terms,  to  cases  where  a  plurality  of 
persons  contract  several  obligations  in  the  same  instrument. 
That  is  the  case  here.  It  may  be  said  that  the  cause  of  action  is 
not,  in  this  case,  precisely  the  same  against  both  defendants.  The 
lessee  engaged  to  pay  the  rent  unconditionally,  and  the  surety  was 
under  no  obligation  until  the  principal  had  made  default.  But 
after  such  default,  each  of  them  was  liable  for  the  same  precise 
amount  absolutely.  They  were,  therefore,  within  the  language 
which  speaks  of  persons  severally  liable  upon  the  same  instrument. 
If  this  were  otherwise  doubtful,  the  reference  to  suits  upon  bills 
of  exchange  and  promissory  notes  makes  it  entirely  certain  that 
the  present  case  was  one  of  those  in  the  contemplation  of  the  au- 
thors of  the  section.  The  parties  to  such  paper  are  included  in 
the  provision.  The  indorsee  of  a  bill  or  note  and  the  drawer  of 
an  accepted  bill  are  only  liable  contingently,  and  after  being 
charged  upon  a  default  of  the  maker  or  acceptor.  They  were  in- 
cluded in  the  scope  of  the  enactment,  because,  though,  in  a  general 
sense,  parties  to  the  paper  on  which  their  names  are  placed,  they 
are  not  parties  to  the  obligation  or  instrument,  in  the  same  strict 
sense  as  the  surety  in  the  case  under  consideration." 

In  Creed  v.  Hartman,  29  N.  Y.  591,  the  question  as  to  defendants 
under  the  code  came  up  again  for  consideration.  In  that  case,  the 
defendant  was  one  of  a  firm  who  had  contracted  to  build  a  block 
of  houses  in  the  city  of  New  York.  The  contractors  made  a  sub- 
contract with  one  Brady,  to  make  all  necessary  excavations.  He 
was  to  guard  against  accidents  by  proper  precautions,  and  all 
damages  were  to  be  made  good  by  him.  The  sidewalk  was  ex- 
cavated and  covered  with  boards  by  some  one ;  the  defendant's 
foreman  was  in  the  habit  of  putting  up  guards  at  evening.  Mary 
Creed,  one  of  the  plaintiffs,  in  passing  over  the  platform,  broke 
through  and  fell  into  the  excavation.  She  was  injured,  and  her 
thigh  fractured.  The  defendant  moved  for  a  nonsuit,  upon  the 
ground  that  Brady  was  the  party  guilty  of  negligence,  if  any; 
that  the  plaintiff  was  guilty  of  negligence ;  and  that  the  partner 
of  the  defendant  was  a  necessary  party. 


PARTIES.  59 

Selden,  J. :  "The  excavation  was  made  on  the  defendant's  ac- 
count, and  at  his  request,  in  a  public  street,  for  a  private  purpose 
of  the  defendant,  in  which  the  public  had  no  interest,  and,  so  far 
as  the  case  discloses,  without  the  consent  of  the  corporate  authori- 
ties. The  act  of  making  the  excavation  was  wrongful,  without 
reference  to  the  manner  in  which  it  was  made  or  secured.  The 
defendant  was,  therefore,  liable  for  the  injury  which  the  excava- 
tion produced  to  third  pei'sons,  without  fault  on  their  part,  whether 
the  workmen  were  guilty  of  negligence  or  not.  Congreve  v.  Smith, 
18  K  Y.  79  ;  Dygert  v.  Schenck,  23  Wend.  446  ;  Coupland  v.  Hard- 
ingham,  3  Campb.  398.  The  basis  of  the  defendant's  liability  ia 
his  own  wrongful  act  in  procuring  the  excavation  to  be  made  with- 
out authority,  and  not  the  negligence  of  the  contractor  or  his  work- 
men in  performing  or  guarding  the  work. 

"  The  ground  upon  which  I  have  placed  the  liability  of  the  de- 
fendant furnishes  an  answer  to  the  objection  that  his  partner  should 
also  have  been  made  a  defendant.  The  making  the  excavation 
without  license  was  a  tort  on  the  part  of  both  the  defendant  and 
Eberspucher  (his  partner),  and  the  liability  for  torts  committed  by 
more  than  one  person  is  always  several  as  well  as  joint.  Law  v. 
Muraford,  14  Johns.  426.  I  doubt  whether  the  rule  would  be  dif- 
ferent if  the  liability  of  the  defendant  should  be  held  to  dejDend 
upon  the  negligence  of  the  common  agent  of  him  and  his  partner. 
Champion  v.  Bostwick,  18  Wend.  185,  186."  Ingraham,  J.,  in  the 
same  case,  uses  this  language:  ';  The  defendant  was  one  of  a  firm 
who  had  the  contract  for  erecting  the  buildings.  Both  of  the  par- 
ties were  alike  guilty  of  negligence,  and  both  might  have  been 
sued  for  such  negligence ;  but  each  of  them  was  equally  liable,  if 
any  liability  existed  ;  and  there  is  no  rule  which  makes  both  par- 
ties necessary  parties  to  an  action  of  this  character.  There  was  a 
separate  liability  as  well  as  a  joint  one.  and  the  plaintiff  might,  at 
his  election,  sue  both  or  either  of  them.     14  Johns.  426." 

This  case  shows  that  where  one  is  injured  by  the  common  negli- 
gence of  several,  he  can  sue  one  or  more,  or  all,  and  it  is  optional 
with  the  plaintiff  which  course  he  chooses  to  take  ;  the  party  sued 
has  no  right  to  object,  because  his  co-trespassers  or  co-wrongdoers 
are  not  also  included  in  the  action  against  him. 

So,  also,  a  joint  action  will  lie  against  principal  and  agent  for  a 
personal  injury  caused  by  the  negligence  of  the  latter  (in  the  absence 
of  the  former),  in  the  course  of  his  employment.  Phelps  v.  Wait,  30  N  • 
Y.  78.  The  action  was  brought  against  father  and  son,  standing  in  the 
relation  of  master  and  servant,  to  recover  damages  for  personal  in- 


60  PARTIES. 

juries  caused  by  the  negligence  of  the  son,  while  driving  the  horses 
of  his  father,  the  father  not  being  with  the  son  at  the  time.  Hoge- 
boom,  J.,  says:  "The  cause  was  retained  for  examination,  princi- 
pally upon  the  other  point — the  supposed  misjoinder  of  parties — , 
and  to  enable  the  defendant's  counsel  to  supply  a  reference  to  au- 
thorities, showing  that  in  analogous  cases  principal  and  agent  could 
not  be  sued  together.  The  current  of  authorities  is  certainly  the 
other  way,  and  in  favor  of  the  right  to  join  these  parties.  And  I 
have  been  unable,  after  a  somewhat  diligent  examination,  to  find 
any  reported  case  holding  a  contrary  doctrine.  The  question  was 
carefully  considered  by  the  Supreme  Court,  in  the  leading  case  of 
Wright  v.  "Wilcox,  19  Wend.  343,  and  has  since  been  followed  in 
several  other  cases.  Montfort  v.  Hughes,  3  E.  D.  Smith,  591 ;  Suy- 
dam  v.  Moore,  8  Barbour,  358;  Hewett  v.  Swift,  10  Am.  L.  E.  505." 

As  the  law  stood  in  1844,  a  mortgagee  was  not  a  necessary  party 
to  the  petition  of  an  administrator  for  the  sale  of  lands  for  the  pay- 
ment of  debts.  Miller's  Ex'r  v.  G-reenham's  Adm'r,  11  Ohio  St. 
486.  As  the  statute  now  is,  the  mortgagee  is  probably  a  necessary 
party  in  such  a  case.     1  S.  &  C.  622,  sec.  287. 

In  a  petition  filed  by  a  creditor,  to  subject  the  stockholders  of 
a  corporation  to  a  personal  liability,  the  creditor  should  file  his 
petition  for  the  benefit  of  all  the  creditors  of  the  corporation,  and 
the  corporation  as  such,  and  the  stockholders  thereof,  should  be 
made  the  defendants,  as  the  contribution  is  a  general  one  on  part 
of  all  stockholders.  17  Ohio  St.  113,  Umsted  v.  Buskirk  et  al. 
The  court  say  that  the  corporation  ought  to  be  made  a  party  in 
such  an  action.     Cunningham  v.  Pell,  5  Paige,  607. 

Where  one  of  several  judgment  debtors  is  insolvent,  he  is  not  a 
necessary  party  defendant  to  a  bill  by  the  creditor,  seeking  to  make 
his  debt  out  of  the  equitable  assets  of  another  of  the  judgment 
debtors.     Van  Clef  v.  Sickles,  5  Paige,  505. 

Infant  Defendants. 

Sec.  32.  The  defense  of  an  infant  must  be  by  a  guardian  for  the 
suit,  who  may  be  appointed  by  the  court,  a  judge  thereof,  or  a  pro- 
bate judge.  The  appointment  can  not  be  made  until  after  the  ser- 
vice of  the  summons. 

Sec.  33.  The  appointment  may  be  made  upon  the  application  of 
the  infant,  if  of  the  age  of  fourteen  years,  and  he  apply  within 
twenty  days  after  the  return  of  the  summons.  If  he  be  under 
that  age,  or  neglect  to  apply,  the  appointment  may  be  made  upon 


THE   COUNTY   IN   WHICH   ACTIONS   ARE   TO   BE   BROUGHT.  61 

the  application  of  any  friend  of  the  infant,  or  on  that  of  the  plaint- 
iff in  the  action. 


If  the  infant  does  not  apply  in  the  twenty  days,  he  may  apply 
at  any  time  before  an  appointment  is  made,  on  the  application  of  a 
friend  or  the  plaintiff.  After  the  twenty  days,  either  of  said  par- 
ties may  apply,  and  the  appointment  will  be  valid.  M'Connell  v. 
Adams,  1  Code,  N.  S.  114. 

A  judgment  taken  against  an  infant  without  a  guardian  is  ir- 
regular, and  will  be  set  aside  on  motion.  Kellogg  v.  Klock,  2 
Code,  28. 


CHAPTER  Y. 


THE   COUNTY  IN  WHICH  ACTIONS  AEE  TO  BE 
BEOUGHT. 

Sec.  45.  Actions  for  the  following  causes  must  be  brought  in  the 
county  in  which  the  subject  of  the  action  is  situated,  except  as  pro- 
vided in  section  46 : 

1.  For  the  recovery  of  real  property,  or  of  an  estate,  or  interest 
therein ; 

2.  For  the  partition  of  property ; 

3.  For  the  sale  of  real  property  under  a  mortgage,  lien,  or  other 
incumbrance  or  change. 

Sec.  46.  If  the  real  property,  the  subject  of  the  action,  be  an  en- 
tire tract,  and  situated  in  two  or  more  counties,  or  if  it  consist  of 
separate  tracts,  situated  in  two  or  more  counties,  the  action  may  be 
brought  in  any  county  in  which  any  tract  or  part  thereof  is  situ- 
ated, unless  it  be  an  action  to  recover  the  possession  thereof.  And 
if  the  property  be  an  entire  tract,  situated  in  two  or  more  counties, 
an  action  to  recover  the  possession  thereof  may  be  brought  in 
either  of  such  counties  ;  but  if  it  consists  of  separate  tracts  in  dif- 
ferent counties,  possession  of  such  tracts  must  be  recovered  by  sep- 
arate actions  brought  in  the  counties  where  they  are  situated. 

An  action  to  compel  the  specific  performance  of  a  contract  of 
sale  of  real  estate  may  be  brought  in  the  county  where  the  defend- 
ants, or  any  of  them,  reside. 


62  COUNTY   IN    WHICH    ACTIONS   ARE   TO   BE   BROUGHT. 

Sec.  47.  Actions  for  the  following  causes  must  be  brought  in  the 
county  where  the  cause,  or  some  part  thereof,  arose. 

1.  An  action  for  the  recovery  of  a  fine,  forfeiture,  or  penalty  im- 
posed by  a  statute,  except  that  when  it  is  imposed  for  an  offense 
committed  on  a  river  or  other  stream  of  water,  or  road  which  is 
the  boundary  of  two  or  more  counties,  the  action  may  be  brought 
ih  any  county  bordering  on  such  river,  water-course,  or  road,  and 
opposite  the  place  where  the  offense  was  committed. 

2.  An  action  against  a  public  officer,  for  an  act  done  by  him  in 
virtue  or  under  color  of  his  office,  or  for  a  neglect  of  his  official 
duty. 

3.  An  action  on  the  official  bond  or  undertaking  of  a  public 
officer. 

Sec  48.  An  action  other  than  one  of  those  mentioned  in  the  first 
three  sections  of  this  chapter,  against  a  corporation  created  by  the 
laws  of  this  State,  may  be.  brought  in  the  county  in  which  it  is 
situated,  or  has  its  principal  office  or  place  of  business  ;  but  if  such 
corporation  be  an  insurance  company,  the  action  may  be  brought 
in  the  county  where  the  cause  of  action,  or  some  part  thereof,  arose. 

Sec  49.  An  action  against  the  owner  of  a  line  of  mail  stages, 
or  other  coaches,  for  an  injury  to  person  or  property,  upon  the 
road  or  line,  or  upon  a  liability  as  carrier,  and  any  action  against 
a  railroad  company,  may  be  brought  in  any  county  through  or  into 
which  such  road  or  line  passes. 

Sec  50.  An  action  other  than  one  of  those  mentioned  in  the 
first  three  sections  of  this  chapter,  against  a  turnpike  road  com- 
pany, may  be  brought  in  any  county  in  which  any  part  of  the 
road  lies. 

Sec  51.  The  provisions  of  this  chapter  shall  not  apply  in  the 
case  of  any  corporation  created  by  a  law  of  this  State,  whose 
charter  prescribes  the  place  where  alone  a  suit  against  such  cor- 
poration may  be  brought. 

Sec  52.  An  action  other  than  one  of  those  mentioned  in  the  first 
three  sections  of  this  chapter,  against  a  non-resident  of  this  State 
or  a  foreign  corporation,  may  be  brought  in  any  county  in  which 
there  may  be  property  of  or  debts  owing  to  said  defendant,  or  where 
said  defendant  may  be  found ;  but  if  said  defendant  be  a  foreign 
insurance  company,  the  action  may  be  brought  in  any  county 
where  the  cause,  or  some  part  thereof,  arose. 

Sec  53.  Every  other  action  must  be  brought  in  the  county  in 
which  the  defendant,  or  some  one  of  the  defendants,  resides,  or 
may  be  summoned. 


COUNTY   IN   WHICH   ACTIONS   ARE   TO   BE   BROUGHT.  63 


The  case  of  Allen  v.  Miller,  11  Ohio  St.  374,  shows  somewhat  the 
construction  to  be  given  to  this  section.     In  this  case,  suit  was 
brought  in  Cuyahoga  county  by  the  assignee  against  the  assignor 
and  the  debtor  of  the  assignor  on  an  account.     The  assignor  was 
served  in  Cuyahoga  county  and  the  debtor  in  Hamilton  county ; 
and  the  court  held  that  the  court  in  Cuyahoga  had  no  jurisdiction 
over  the  debtor  living  in  Hamilton  county.     The  court  say.    "It 
seems  to  us  that  the  words  '  defendant  '  and  '  defendants,'  as  em- 
ployed in  those  sections  of  the  code  (sections  31  and  36)  to  which 
reference  has  been  made,  in  so  far  as  they  effect  the  question  of  ju- 
risdiction, must  be  held  to  mean,  not  nominal  defendants  merely, 
but  parties  who  have  a  real  and  substantial  interest  adverse  to  the 
plaintiff,  and  against  whom  substantial  relief  is  sought;  and  to 
hold  otherwise  would  open  wide  the  door  to  all  sorts  of  colorable 
devices,  to  defeat  the  policy  of  the  law  in  respect  to  jurisdiction- 
devices  difficult  to  detect,  but  oppressive  and  wrongful  in  their 
practical  operation."      Vide  also  Hadley  v.  Dunlap,  10  Ohio  St.  1. 
Actions  by  infirmary  directors,  for  relief  to  transient  paupers, 
having   a   settlement   elsewhere,  may  be  brought,  either  in  the 
county  for  which  the  plaintiff's  are  infirmary  directors,  and  where 
the  relief  was  furnished,  or  in  the  county  in  which  is  the  city  or 
township  which  is  liable  for  the  support  of  the  pauper.     15  Ohio 
St.  409.     This  is  provided  for  in  the  statutes  regulating  paupers 
and  infirmaries  in  this  State. 

Sec  54.  In  all  cases  in  which  it  shall  be  made  to  appear  to  the 
court  that  a  fair  and  impartial  trial  can  not  be  had  in  the  county 
where  the  suit  is  pending,  the  court  may  change  the  place  of  trial 
to  some  adjoining  county. 

The  mode  of  obtaining  a  change  of  venue  is  by  motion  setting 
out  that  the  party  can  not  have  a  fair  trial  in  that  county,  because 
the  people  are  deeply  prejudiced  against  the  party  moving,  or  any 
other  reason  showing  that  a  fair  tinal  can  not  be  had  ;  and  this 
motion  is  to  be  supported  and  opposed  by  affidavits  proving  the 
facts  set  up  in  the  motion,  or  giving  the  opinion  of  the  witness  as 
to  the  difficulties  of  a  fair  trial. 

The  court  is  to  transfer  the  case  to  some  adjoining  county;  but 
this  question  must  be  decided  by  the  court  transferring  the  case,  and 
not  by  the  court  to  which  the  transfer  is  made. 

Where  the  case  is  transferred  on  the  simple  affidavit  of  a  party, 
under  the  statute,  the  opposite  party  having  had  on  this  question 


64  COMMENCEMENT    OP   ACTIONS. 

no  day  in  court,  may,  by  motion  before  the  court  to  which  the 
transfer  is  thus  made,  obtain  a  dismissal  of  the  transfer  on  the 
ground  that  the  facts  did  not,  under  the  law,  authorize  such  trans- 
fer ;  so  held  in  Vinton  Common  Pleas,  in  a  case  from  Meigs  county. 
In  that  case,  there  were  two  judges  in  the  sub-district,  one  of 
whom  was  competent  to  try  the  case ;  and  that  fact  was  held  not 
to  justify  the  transfer  on  the  simple  affidavit  of  a  party  that  the 
judge  holding  the  court  was  not  qualified.  There  was  a  qualified 
judge  in  the  sub-district,  and  it  was  the  duty  of  the  judges  so  to 
arrange  the  business  that  that  judge  could  hold  the  court  and  try 
the  case. 


CHAPTER  VI. 


♦       COMMENCEMENT  OF  ACTIONS. 

A  civil  action  is  commenced  by  filing,  in  the  office  of  the  clerk 
of  the  proper  court,  a  petition,  and  causing  a  summons  to  be  issued 
thereon. 

The  plaintiff  must,  with  his  petition,  file  his  precipe,  stating  the 
names  of  the  parties  to  the  action,  and  demanding  that  a  summons 
issue  thereon. 

FORM    OP    PRECIPES 

A  B,  plaintiff,  ~\  County,  ss. 

C  D,  E  F,  and  Gil,  defendants,  j  Court  of  Common  P1eas. 

The  clerk  of  said  court  will  issue  a  summons  in  this  case  for  the 
said  C  D,  directed  to  the  sheriff  of  said  county  of  ,  and  one 

for  the  said  E  F,  directed  to  the  sheriff  of  the  county  of  ,  and 

one  for  G  H,  a  minor  under  the  age  of  fourteen  years,  directed  to 
the  sheriff  of  the  county  of  .     And  indorse  on   summons : 

The  plaintiff  claims  judgment  for  $  ,  with  interest  from  the 

day  of 

Aug.  7,  1855.  S  N,  Att'y  for  Pl'ff. 

Note. — If  more  time  is  wanted  for  the  return  under  section  59, 
it  should  be  stated  in  the  precipe  thus:  "returnable  on  the  day 
of  next." 


COMMENCEMENT   OP   ACTIONS.  65 

The  above  form  of  an  indorsement  will  answer  when  the  prayer 
of  the  petition  is  for  a  sum  certain,  with  interest  from  a  given 
date.  But  there  are  a  class  of  cases  on  contract  where  the  sum 
claimed  is  uncertain,  and  in  the  form  of  damages,  and  all  actions 
for  torts  are  of  that  character.  In  these  cases  the  addition  to  the 
precipe  will  be  as  follows  : 

And  indorse  on  summons:  The  plaintiff  claims  judgment  for 
$  damages. 

These  two  forms  will  meet  all  cases,  save  when,  in  a  mortgage 
case,  a  judgment  is  demanded  for  the  sum  due,  with  interest.  In 
that  case  the  addition  will  be  somewhat  as  follows  : 

And  indorse  on  summons  :  The  plaintiff  demands  a  judgment  for 
$  ,  with  interest  from  the         day  of  ,  a.  d.  187     ;  and 

also  the  sale  of  certain  lands  named  in  petition  as  mortgaged  to 
secure  the  payment  of  said  sum,  in  case  said  judgment  is  not  paid 
by  a  named  day. 

The  clerk  must  issue  the  summons  from  the  precipe,  and  not 
from  the  petition.  The  precipe  must  contain  the  names  of  all  the 
defendants  against  whom  it  is  necessary  that  a  summons  should 
issue ;  for  a  summons  seems  to  be  necessary,  even  against  such  as 
can  not  be  reached  in  that  way,  and  against  whom  publication  has 
to  be  made.  This  is  implied  from  the  heading  to  Chapter  XI  of 
the  code. 

So  if  there  are  minor  defendants,  the  precipe,  if  not  the  petition, 
should  state  the  age  of  the  minors,  so  as  to  show  whether  they  are 
of  the  age  of  fourteen  years  or  not ;  since  the  manner  of  the  serv- 
ice is  varied  by  that  fact.     Sec.  69. 

FORM    OF    A   SUMMONS. 

The  State  of  Ohio,  County,  ss. 

To  the  Sheriff  of  County,  Greeting : 

You  are  hereby  commanded  to  notify  that  they  have  (or 

he  has)  been  sued  by  in  the  Court  of  Common  Pleas  within 

and  for  the  said  county  of  ,  and  that  unless  they  (or  he)  an- 

swer by  the  (here  insert  the  day  for  answer)  the  petition  of  the  said 
filed  against  them  (or  him)  in  the  clerk's  office  of  the  said 
vol.  1 — 5 


GG  COMMENCEMENT    OP   ACTIONS. 


court,  such  petition  will  be  taken  as  true,  and  judgment  be  ren- 
dered accordingly. 

You  will  make  due  return  of  this  summons  on  or  before  the 
day  of  ,  a.  d.  18     . 

Witness  my  hand  and  the  seal  of  said  court  at  the 

[Seal~\  day  of  ,  a.  d.  18     . 

W  S,  Clerk. 

If  signed  by  deputy,  it  should  be  done  in  this  form : 

W  S,  Clerk, 

By  E  S,  Deputy. 

The  summons  is  to  be  indorsed  with  the  sum  for  which  judgment 
is  demanded,  and  the  time  stated  from  which  interest  was  claimed. 
In  the  first  consideration  of  this  clause,  in  connection  with  certain 
other  clauses,  it  was  thought  that  the  indorsement  was  confined  to 
cases  where  judgment  was  demanded  for  a  sum  certain  with  in- 
terest from  a  certain  date.  This  excluded  from  this  provision,  ac- 
tions brought  to  recover  an  uncertain  sum  sounding  in  damage. 
But  the  courts,  on  a  full  consideration  of  the  whole  code,  have  de- 
cided as  suggested  in  a  note  to  the  first  edition,  that  these  words 
for  the  recovery  of  money  only  included  all  common-law  actions 
whether  for  a  sum  certain  or  for  a  sum  in  damages. 

In  section  531,  relating  to  costs,  the  same  language  is  found  as  in 
section  57.  The  plaintiff  is  entitled  to  costs,  of  course,  in  actions 
for  the  recovery  of  money  only.  This  language  must  be  construed  as 
broadly  as  that  in  section  263,  though  the  word  only  is  added  to  sec- 
tion 531,  and  not  to  section  263.  It  can  not  be  supposed  that  costs 
in  actions  for  torts  were  to  be  left  in  the  discretion  of  the  court.  Be- 
sides, section  552,  in  declaring  that  in  certain  actions  for  damages, 
if  the  plaintiff  recovered  less  than  five  dollars  he  should  not  be 
entitled  to  recover  costs,  is  inconsistent  with  the  opinion  that  this 
language  for  the  recovery  of  money  only,  does  not  include  actions 
sounding  in  damages.  Hence  it  seems  to  be  clear  that  these  words, 
actions  for  the  recovery  of  money,  or  for  the  recovery  of  money  only, 
must  be  construed  to  mean  the  same  thing  and  to  include  the  same 
actions ;  and  that  in  all  actions,  where  the  parties  are  in  law  enti- 
tled to  a  trial  by  jury,  the  plaintiff  must  indorse  the  amount  claimed 
on  his  summons,  according  to  the  nature  of  the  sum  claimed.  If 
the  amount  is  one  certain  with  interest  from  a  certain  date,  it  must 
be  so  stated ;  if  the  amount  claimed  sounds  in  damages,  it  must 
also  be  so  stated.  Hence  the  indorsement  will,  of  course,  vary 
according  to  the  nature  of  the  claim,  and  according  to  the  prayer 


COMMENCEMENT    OF    ACTIONS.  67 

of  the  petition.  If  the  claim  is  one,  where  interest  is  demanded  on 
it  from  a  fixed  date,  then  the  indorsement  must  state  not  only  the 
amount,  hut  the  time  from  which  interest  is  claimed ;  if  the  case  is 
one  sounding  in  damages,  the  indorsement  will  state  the  sum 
claimed  as  damages. 

Section  112  shows  that  the  indorsement  for  a  sum  with  interest 
is  required  in  all  actions  founded  upon  contracts,  express  or  implied, 
for  the  payment  of  money  only ;  in  all  other  cases,  the  indorsement 
must  be  for  a  sum  claimed  as  damages. 

If  a  different  rate  of  interest  is  claimed  than  that  fixed  by  law, 
the  indorsement  should  show  this  fact;  since  judgment  can  not  be 
rendered  for  a  greater  sum  than  that  demanded. 

It  has  been  held,  that  if  an  indorsement  for  money  is  made  in  an 
action  seeking  other  relief  than  a  judgment  for  money  only,  no  judg- 
ment can  be  rendered  on  a  default.  The  reason  for  this  is  that  the 
indorsement  is  a  notice  to  the  defendant  that  the  judgment  asked 
for  is  only  a  judgment  for  the  money  stated  in  the  indorsement  on 
the  writ.  This  decision,  made  first  by  Gholson,  J.,  in  the  Superior 
Court  of  Cincinnati,  was  followed  by  Nash,  J.,  in  a  case  decided  in 
the  Washington  Common  Pleas  at  its  October  term,  a.  d.  1855 ;  and 
the  ruling  has  ever  since  been  followed,  as  the  true  construction  of 
the  code.  If  the  party  answers  to  the  action,  that  would  be  a 
waiver  of  the  irregularity,  since  the  petition  shows  him  the  nature 
of  the  case  and  to  that  case  he  files  his  answer  and  raises  issues  on 
the  merits. 

It  will  thus  be  seen  that  the  distinction  between  common-law 
actions  and  bills  in  equity  is  kept  up :  1.  In  relation  to  the  indorse- 
ment to  be  made  on  the  summons  ;  2.  In  relation  to  the  trial  of  the 
action.  In  common-law  actions  the  parties  are  entitled  to  a  trial 
by  jury ;  in  actions  founded  in  equity,  the  trial  is  by  the  court. 

The  law  is  now  so  amended  (S  &  S.  575),  that  in  all  actions 
for  the  foreclosure  of  mortgages  given  to  secure  the  payment  of 
money,  or  in  which  a  specific  lien  for  money  claimed  to  be  due  is 
sought  to  be  enforced,  the  plaintiff  may  also  ask  in  his  petition  a 
judgment  for  the  money  claimed  to  be  due;  and  such  proceedings 
shall  be  had  and  judgment  rendered  thereon,  as  in  other  civil  ac- 
tions for  the  recovery  of  money  only. 

The  statute  authorizes  an  anomalous  joinder  of  causes  of  action, 
but  makes  no  provision  about  the  indorsement  to  be  made  on  the 
summons  ;  it  is  a  common-law  action  so  far  as  a  money  judgment 
is  concerned,  on  the  trial  of  which  the  parties  are  entitled  to  a  trial 
by  jury  ;  and  hence  the  statute  says  the  case  is  to  be  proceeded  in 


68  COMMENCEMENT   OP   ACTIONS. 

as  an  action  at  common  law ;  it  is  also  a  bill  in  equity  so  far  as  the 
foreclosure  of  the  mortgage,  or  the  enforcement  of  the  lien  is  con- 
cerned. What  indorsement  shall  then  be  made?  If  a  simple  in- 
dorsement for  a  money  judgment  is  put  on  the  summons,  then 
under  the  rulings  no  other  judgment  can  be  taken;  and  if  no  in- 
dorsement is  made,  then  the  case  is  in  equity  and  no  money  judg- 
ment can  be  had.  There  must  be  an  indorsement  of  the  amount 
for  which  judgment  is  claimed  with  the  date  from  which  interest  is 
to  run,  and  as  a  precaution,  it  should  also  state  that  an  order  for 
the  sale  of  the  mortgage  premises  will  be  asked  for,  if  the  debt  is 
not  paid.  This  gives  the  defendant  full  notice  of  the  moneyed 
character  of  the  action  and  the  double  relief  sought  for  by  it. 
Such,  I  believe,  is  the  practice  of  all  prudent  lawyers  upon  a  stat- 
ute for  which  this  portion  of  the  code  does  not  provide.  It  would 
be  well  if  legislation  was  the  result  of  more  mature  deliberation. 
Until  .the  Supreme  Court  decides  the  question,  this  is  the  only  pru- 
dent course,  if  one  wishes  to  be  sure  he  is  right  under  any  view  the 
court  may  take  of  the  statute. 

INDORSEMENT    TO    BE    MADE    ON   THE    SUMMONS. 

1.  The  plaintiff  claims  judgment  for  $  ,  with  interest  from 
the            day  of         ,  a.  d.  187  . 

2.  The  plaintiff  claims  a  judgment  for  $  ,  for  damages  by 
him  sustained. 

3.  The  plaintiff  claims  a  judgment  for  $  ,  with  interest 
from  the  day  of  ,  a.  d.  187  ,  and  also  the  sale  of  certain 
lands  named  in  petition  as  mortgaged  to  secure  the  payment  of  the 
said  sum  in  case  the  judgment  is  not  paid  by  a  named  day. 

No  indorsement  is  required  in  a  case,  which,  before  the  code, 
would  have  been  a  bill  in  equity;  hence  it  is  necessary  to  discrim- 
inate very  closely  what  the  action  is.  A  bill  to  settle  a  partner- 
ship may  result  in  a  money  judgment,  but  no  indorsement  is  re^ 
quired,  because  the  object  of  the  bill  is  an  account.  There  are 
many  other  cases,  which  call  for  an  account ;  in  these  cases  no  in- 
dorsement is  required,  and  when  not  required,  none  should  be 
inserted  in  precipe,  and'none  indorsed  on  the  summons. 

The  subject  of  the  indorsement  to  be  made  on  the  writ  came  up 
for  consideration  before  the  District  Court,  in  Washington  county, 
at  its  September  term,  a.  d.  1858,  in  the  case  of  Towsly  &  Lord  v. 
Franks.     Nash,  Peck,  and  Whitman,  JJ. 


COMMENCEMENT    OP   ACTIONS.  69 

"  The  action  below,  as  disclosed  in  the  petition,  was  founded  upon 
the  sale  and  delivery  and  putting  up  of  a  steam-engine  on  certain 
premises  of  the  plaintiffs  in  error,  which  are  described  in  the  peti- 
tion; the  petition  set  forth  facts  justifying  his  right  to  a  mechanic's 
lien  upon  the  premises  for  the  machinery  so  sold  and  put  up,  and 
asked  for  a  judgment  for  the  money  and  a  sale  of  the  property.  A 
summons  was  issued  and  the  following  indorsement  entered  upon 
it :  '  Amount  claimed,  $887.88,  with  interest  from  May  4, 1853,  less 
certain  credits  stated.'  This  summons  was  returned  duly  served, 
and  a  judgment  by  default  was  rendered  in  the  case,  finding  a  lien, 
and  the  amount  due,  and  rendering  judgment  for  the  amount  due, 
and  ordering  a  sale  of  the  premises  in  case  the  sum  so  found  due 
was  not  paid  within  a  time  stated.  To  reverse  this  judgment,  this 
petition  in  error  is  prosecuted. 

"  The  court  held  that  in  this  case  no  indorsement  was  necessary, 
the  action  not  being  an  action  for  the  recovery  of  money  only.  The 
action  is  founded  upon  principles  of  equity,  and  not  upon  a  com- 
mon-law right ;  hence,  this  indorsement  was  calculated  to  mislead 
the  defendant ;  he  had  a  right  from  this  indorsement  to  infer  that 
a  simple  judgment  for  the  sum  indorsed  was  all  that  the  plaintiff 
demanded  in  his  action.  This  irregularity  had  not  been  waived, 
as  the  judgment  was  taken  on  a  default. 

"  The  service  in  this  action  was  not  a  good  service  for  the  judg- 
ment rendered;  the  writ  as  served  did  not  truly  indicate  the  nature 
of  the  action,  nor  of  the  judgment  which  was  rendered  in  the  case. 
Hence,  we  think  there  was  error  in  the  rendition  of  the  judgment, 
and  the  same  must  be  reversed,  and  the  cause  remanded  for  further 
proceedings." 

INDORSEMENT    ON   THE   WRIT. 

The  plaintiff  in  this  case  claims  judgment  for  the  sum  of  $ 
together  with  interest  thereon  from  the         day  of  ,  a.  d.  18    . 

Attest,  W  S,  Clerk. 

The  clerk  makes  this  indorsement  from  the  statement  in  the 
precipe.  Hence  the  clerk  need  only  indorse  the  writ,  when  the 
party  has  stated  in  his  precipe  a  sum  for  which  he  claims  judg- 
ment, with  the  date  for  interest. 

Writs  may  be  sent  to  any  county  in  the  State,  when  the  court  in 
which  it  is  brought  has  acquired  jurisdiction  of  the  cause. 

The  summons  must  state  the  day  when  the  defendant  must  an- 
swer. The  time  for  answer  is  on  or  before  the  third  Saturday  after 
the  l-eturn  day.     Sec.  103.     The  summons  must  be  made  return- 


70  COMMENCEMENT   OF   ACTIONS. 

able  on  the  second  Monday  after  its  date,  unless  a  summons  has  to 
be  issued  to  another  county.  In  that  case  it  may  be  made  return- 
able on  the  third  or  fourth  Monday,  as  the  party  shall  elect  in  his 
precipe. 

When  a  summons  has  been  returned  not  summoned,  other  writs 
may  be  issued  until  service  is  obtained. 

Writs  may  be  sent  at  the  same  time  to  different  counties,  where 
the  defendants  reside  in  different  counties. 

SERVICE    OP    SUMMONS. 

Actual  service — By  whom  made. — The  summons  shall  be  served 
by  the  officer  to  whom  it  is  directed.  This,  of  course,  includes  all 
his  duly  appointed  deputies. 

It  may  also  be  served  by  a  private  person,  not  a  party  to  the  ac- 
tion, to  be  appointed  by  the  officer  to  whom  it  is  directed.  The 
authority  must  be  in  writing  on  the  writ.  It  may  be  in  this  form. 
The  court,  or  a  judge  thereof,  may  also,  under  certain  circum- 
stances, appoint  one  to  serve  process.     Sec.  583. 

AUTHORITY   TO   A   PRIVATE   PERSON   TO    SERVE   SUMMONS. 

I,  A  B,  sheriff  of  said  county  of  ,  hereby  appoint  and  au- 

thorize CD  to  serve  the  within  writ  of  summons. 

Dated  this         day  of  ,  18     . 

A  B,  Sheriff. 

How  service  to  be  made. — The  service  must  be  made  by  delivering 
a  copy  of  the  summons  to  the  defendant  personally,  or  by  leaving 
one  at  his  usual  place  of  residence,  at  any  time  before  the  return 
day  of  the  writ. 

The  only  difficulty  in  the  service  is  sometimes  to  ascertain  the 
place  of  residence  of  a  party.  Where  a  party  has  a  family  with 
whom  he  is  living,  there  can  be  no  difficulty ;  but  where  one  has  a 
family  living  in  the  State,  which  he  has  left,  not  for  a  temporary 
purpose,  but  for  the  purpose  of  being  absent  an  indefinite  time,  no 
service  can  be  made  on  him  by  leaving  a  copy  of  the  writ  with  his 
family.  This  is  true  of  such  as  are  or  have  been  absent  in  Califor- 
nia. Their  residence  is,  for  this  purpose,  no  longer  here.  The 
language  of  our  statute  is,  at  his  usual  place  of  residence.  The 
word  usual  place  of  residence  means  the  place  of  abode  at  the  time 
of  the  service.  Gadsden  v.  Johnson,  1  Nott  &  M'Cord,  89.  The 
true  criterion  is  whether  the  defendant  had  or  had  not  abandoned 
the  domicile  at  which  the  copy  was  left.     Frean  v.  Cruikshanks,  3 


COMMENCEMENT    OP   ACTIONS.  71 

M'Cord,  84.  If  the  party  is  out  of  the  State  only  for  a  temporary 
purpose,  expecting  to  return  in  a  definite  time,  then  his  residence 
is  still  here,  and  service  may  be  made  by  copy  at  his  usual  place 
of  residence.  lb.  A  hotel  or  boarding-house,  at  which  a  stranger 
from  another  State  is  sojourning  for  a  few  days,  can  not  be  consid- 
ered as  his  "usual  place  of  abode,"  within  the  meaning  of  a  stat- 
ute authorizing  a  service  of  process  by  leaving  a  copy  at  defend- 
ant's usual  place  of  abode.  White  v.  Primm,  36  111.  416.  So 
process  for  the  commencement  of  an  action  against  a  convict  in 
the  State  prison  may  be  served  upon  him  in  the  prison  ;  although 
his  right  to  sue  is  suspended,  he  may  still  be  sued,  and  the  suit 
prosecuted  to  judgment.  Davis  v.  Duffie,  8  Bosw.  (N.  Y.)  617. 
Where  a  writ  is  served  on  a  person  of  a  different  name  from  the 
one  against  whom  it  was  issued,  and  there  is  no  appearance,  the 
plaintiff  can  not  proceed.  Elliot  v.  Holmes,  1  McLean,  466. 
Where  a  resident  is  temporarily  absent,  leaving  an  agent,  valid 
service  can  not  be  made  upon  him  by  leaving  a  summons  at  the 
last  and  usual  place  of  abode  of  the  agent.  Holmes  v.  Fox,  17 
Maine,  107.  The  service  of  a  writ  on  Sunday,  by  the  defendant 
indorsing  his  appearance,  is  void.  Vanderpoel  v.  Wright,  1  Cow.  209. 

Where  the  defendant  is  a  single  man,  there  is  often  more  diffi- 
culty. To  justify  the  leaving  of  a  copy  at  his  boarding-house,  he 
must  be  actually  boarding  at  the  place  at  the  time.  If  he  has  left 
the  place,  the  service  is  not  good. 

A  defendant  may  write  on  the  summons  that  he  acknowledges 
service,  and  this  may  be  done  without  the  summons  being  in  the 
hands  of  an  officer. 

Questions  come  up  sometimes  on  a  motion  to  discharge  from  ar- 
rest, or  vacate  the  service  because  obtained  by  fraud.  There  are 
cases  where  one  has  been  induced  by  fraud  to  come  within  a  juris- 
diction, in  order  to  obtain  a  service  upon  him.  In  these  cases,  the 
court  will  interfere  and  discharge  the  arrest  or  set  aside  the  ser- 
vice, because  the  process  of  the  court  has  been  abused,  and  a  ser- 
vice obtained  in  a  jurisdiction  where  it  could  not  have  been  ob- 
tained, except  by  the  use  of  fraud. 

In  Snelling  v.  Watrous,  2  Paige,  314,  the  defendant,  Watrous, 
was  in  contempt  for  not  answering,  and  an  attachment  was  issued 
against  him,  upon  which  he  could  not  be  found.  But  having  ap- 
plied for  his  discharge,  under  the  insolvent  act,  to  the  recorder  of 
New  York,  the  complainants'  counsel  opposed  his  discharge,  and 
procured  au  order  for  his  personal  examination  before  the  recorder. 
After  the  examination  was  closed,  and  as  he  was  leaving  the  re- 


72  COMMENCEMENT    OP   ACTIONS. 


Cbrder's  office,  the  complainants'  counsel  caused  him  to  be  arrested 
on  the  attachment.  A  motion  was  made  for  his  discharge.  Wal- 
worth, Ch.,  said:  "But  under  the  circumstances  of  this  particular 
case,  the  defendant  must  be  discharged  from  the  arrest.  Where 
the  party  has  not,  in  fact,  been  guilty  of  a  crime  this  court  will  not 
permit  the  complainant  to  resort  to  any  unfair  and  inequitable 
method  to  enforce  the  process  of  attachment.  It  is  very  evident 
that  the  proceeding  before  the  recorder  to  procure  the  personal  at. 
tendance  of  the  insolvent  was  a  mere  device  to  enable  the  com- 
plainants to  arrest  him  on  this  attachment.  I  can  not  allow  a 
party  thus  to  abuse  the  process  or  the  remedial  power  of  any  court. 
In  Wells  v.  Gurney,  8  Barn.  &  Cress.  679,  where,  by  the  contrivance 
of  the  plaintiff's  attorney  the  defendant  was  arrested  on  Sunday, 
for  an  assault  actually  committed,  but  for  the  real  purpose  of  de- 
taining him  until  Monday,  so  that  he  might  be  arrested  in  a  civil 
suit,  the  court  of  King's  Bench  discharged  the  defendant  from  the 
last  arrest." 

So,  in  the  case  of  Stein  v.  Yalkenhuysen,  Ellis,  Blackburn  & 
Ellis,  65;  S.  C.  96  Eng.  Com.  Law,  63,  where  a  creditor,  by  a  concerted 
fraud,  induced  his  debtor,  who  resided  abroad,  to  come  to  England, 
and  immediately  had  him  arrested  by  order  of  a  judge,  the  court, 
on  an  affidavit  showing  the  facts,  by  rule,  set  aside  the  whole,  as 
an  abuse  of  the  process  of  the  court.  Whitman,  J.,  says:  "Now, 
on  these  affidavits,  I  entertain  no  doubt  whatever  that  all  the  rep- 
resentations of  Smith  were  mere  fictions,  made  solely  for  the  pur- 
pose of  inducing  the  defendant  to  come  to  England,  that  he  might 
be  arrested,  and  that  the  plaintiffs  were  parties  to  this  delusion, 
which  produced  the  desired  effect  of  bringing  the  defendant  here, 
where  he  never  would  have  come  had  he  known  the  truth.  Then, 
having  no  doubt  at  all  that  the  defendant  was  lured  to  this  country 
by  the  fraud  of  the  plaintiffs,  the  next  question  arises,  and  it  seems 
to  me  that  the  plaintiffs  are  disabled  from  taking  advantage  of  their 
own  fraud.  It  is  much  as  if  the  plaintiffs  had  given  the  defendant 
an  express  undertaking  that  he  should  not  be  arrested  while  in 
England.  Bringing  the  defendant  here  by  fraud  has  at  least  as 
much  effect  as  if  there  were  an  express  promise."  Crompton,  J., 
said :  "  But,  in  the  present  case,  the  process  of  the  court  has  been 
abused.  The  debtor,  being  a  foreigner,  resident  out  of  this  juris- 
diction, is,  by  a  concerted  trick  amounting  to  a  fraud,  brought 
within  it.  I  think  that  the  plaintiffs,  being  parties  to  such  a  fraud- 
ulent abuse  of  our  process,  are  prevented  by  a  personal  disability 
from  availing  themselves  of  the  act.     I  doubt  much,  also,  whether 


COMMENCEMENT   OP   ACTIONS.  73 

a  foreigner  brought  into  the  country  in  this  manner,  can  fairly  be 
said  to  be  about  to  quit  England,  within  the  meaning  of  the  act. 
And  the  case  is  the  stronger,  as  the  debt,  debtor,  l-esidence,  and 
everything  is  foreign.  But  this  rule  is  absolute,  on  the  ground 
that  our  process  is  abused.  Per  curiam.  The  whole  was  an  abuse 
of  the  process.     It  must  all  be  set  aside." 

In  a  note  by  the  editor  to  this  case,  we  find  a  statement  of  the 
law  on  this  subject.  "  Where  a  defendant  is  brought  within  reach 
of  the  process  of  a  court  by  a  trick,  or  by  the  fraudulent  abuse  of 
other  process,  the  service  of  the  writ  will  be  set  aside."  Addicks 
v.  Bush,  1  Phila.  19  ;  see  Com.  v.  Daniels,  6  Penn.  Law  Jour.  330  ; 
Williams  v.  Bacon,  10  Wend.  636. 

The  party  may,  by  motion,  or  by  rule  of  court,  call  on  the 
plaintiff  to  show  cause  why  the  service  should  not  be  set  aside,  for 
the  reason  that  the  defendant  has,  by  fraud,  been  brought  within 
the  jurisdiction  for  the  purpose  of  obtaining  a  service  upon  him. 
In  England  it  is  done  by  rule  ;  in  this  country  more  often  by  a 
motion.  In  either  case,  the  rule  or  the  motion  must  contain  a 
statement  of  the  facts  by  which  the  party  was  induced  by  trick  to 
come  within  the  jurisdiction  of  the  court.  In  our  practice,  where 
a  party  is  inveigled  from  one  country  into  another,  in  order  to  get 
service  on  him  there,  the  service  would  be  set  aside  as  an  abuse  of 
the  process  of  the  court.  The  law  does  not  allow  a  party  by  fraud, 
to  change  the  jurisdiction  over  the  person,  whether  from  one  na- 
tion to  another,  from  one  State  to  another,  or  from  one  county  to 
another.  No  party  can  be  allowed  to  obtain  what  he  deems  an  ad- 
vantage over  another,  by  fraud,  in  any  case.  The  court  will  vin- 
dicate the  good  faith  and  honesty  of  its  own  process. 

Service  on  Corporations. 

A  summons  upon  a  corporation  may  be  served  upon  the  presi- 
dent, mayor,  chairman  of  the  board  of  directors,  or  trustees,  or 
other  officer.  By  the  words  other  officer,  is  meant  its  chief  officer — 
some  officer  of  the  same  character  as  those  enumerated. 

Or,  if  its  chief  officer  is  not  found  in  the  county,  it  maybe  served 
upon  its  cashier,  treasurer,  secretary,  clerk,  or  managing  agent. 

Or,  if  none  of  the  aforesaid  officers  can  be  found,  the  service 
may  be  made  by  a  copy  left  at  the  office  or  usual  place  of  business 
of  such  corporation,  with  the  person  having  charge  thereof. 

No  service  by  copy  can  bo  made,  unless  it  is  left  with  some  one 
having  charge  of  the  office  or  usual  place  of  business  of  the  cor- 
poration.    If  the  corporation  has  more  than  one  place  of  doing 


74  COMMENCEMENT   OP   ACTIONS. 

business,  the  service  must  be  made  at  its  principal  place  of  busi- 
ness. 


The  statute  authorizes  railroads  and  some  other  corporations 
and  companies  to  bo  sued  in  any  county  through  which  the  line 
of  its  road  runs.  But  in  these  cases  the  summons  must  be  issued 
to  the  sheriff  of  the  county  where  its  main  office  is  kept,  and  ser- 
vice be  made  there.  This  question  came  up  in  a  case  in  Athens 
county  some  years  since,  to  wit,  at  May  term,  a.  d.  1858,  and,  after 
full  argument,  was  so  decided  ;  and  such,  I  believe,  is  the  universal 
practice.  The  case  I  refer  to  is  Bank  of  Athens  v.  Marietta  and 
Cincinnati  B.  B.  Co.,  Nash's  PI.  &  Pr.  784,  of  the  edition  of  1864. 

The  return  of  service  on  corporation  must  be  special,  and  show 
the  facts  which  authorize  the  service  actually  made.  This  ques- 
tion came  up  for  consideration  in  the  case  of  Fee  v.  The  Big  Sand 
Iron  Co.,  13  Ohio  St.  563.  It  was  there  decided  that  section  66  of 
the  code  for  the  service  of  summons  against  a  corporation  super- 
sedes the  mode  previously  provided  by  section  97  of  the  corpora- 
tion act  of  May  1,  1852,  and  thei'eby  secures  uniformity  in  the 
practice.  All  service  of  a  summons  on  corporations  must  now  be 
made  under  and  in  accordance  with  this  section  of  the  code.  The 
court  further  held  that  to  make  the  service  of  a  summons  against 
a  corporation  upon  one  of  the  subordinate  officers,  specified  in  the 
section,  or  by  a  copy  left  at  the  office  or  usual  place  of  doing  busi- 
ness of  such  corporation,  with  the  person  having  charge  thereof, 
good,  the  return  must  affirmatively  show  that  none  of  the  persons 
previously  named,  upon  whom  service  may  be  made  in  the  order 
stated,  could  be  found  within  the  county.  The  court  say:  "The 
service  in  the  present  case  is  not  shown  to  be  in  conformity  to  the 
code.  The  sheriff's  return  fails  to  show  that  personal  service 
could  not  be  made  in  the  county  upon  the  chief  officer  of  the  com- 
pany. A  copy  of  a  summons,  '  left  at  the  office  or  usual  place  of 
business  of  such  corporation,  with  the  person  having  charge 
thereof,'  is  not  good  service,  unless  the  return  of  service  shows,  in 
substance,  affirmatively,  that  the  chief  or  other  specified  officer  of 
the  corporation  could  not  be  found  in  the  county." 

The  service  must  be  made  on  the  president,  mayor,  chairman 
of  the  board  of  directors  or  trustees,  or  other  chief  officer,  if  he 
can  be  found  in  the  county.  The  question  arises,  whether  the  ser- 
vice must  be  personal  on  the  officer,  or  whether  it  can  be  made  by 
leaving  a  copy  at  the  usual  place  of  residence  of  such  officer.    My 


COMMENCEMENT    OP   ACTIONS.  75 

own  opinion  is  that  the  service  must  be  personal.  If  the  chief 
officer  can  not  be  found  in  the  county,  so  that  a  personal  service 
may  be  made  on  him,  the  sheriff  may  return  "  not  found  "  as  to 
him,  and  then  service  on  the  next  officer  named,  on  which  service 
may  be  made.  Under  the  Illinois  statute,  it  was  held  that  to  give 
jurisdiction  without  an  appearance  by  service  of  process  upon  a 
corporation,  the  return  must  show  either  that  the  president  did 
not  reside  in  or  was  absent  from  the  county.  St.  Louis,  etc.,  E. 
E.  Co.  v.  Dorsey,  47  111.  288.  The  section  seems  to  imply  the  same 
by  saying  that  if  none  of  the  named  officers  can  be  found,  service 
may  be  made  by  a  copy  left  at  the  office  or  usual  place  of  business 
of  the  corporation,  with  the  person  having  charge  thereof.  I 
think,  therefore,  the  service  must  be  personal  when  made  on  the 
officers  named,  and  only  by  a  copy,  when  none  of  the  officers  named 
can  be  personally  found  within  the  county.  The  sheriff  is  bound 
to  ascertain  who  are  the  officers  of  the  corporation,  and  be  sure  he 
serves  it  on  the  person  who  is  the  officer  named.  Where  the 
plaintiff,  in  an  action  against  a  corporation,  is  the  president  of  the 
corporation,  service  on  himself  as  such  president  is  not  good. 
Bush  r.  Ashuelqt,  etc.,  Co.,  4  Allen,  357.  This  rule  will  appl}T  to  all 
the  persons  named  upon  whom  service  maybe  made.  If  that  per- 
son is  the  plaintiff,  no  service  can  be  made  on  him. 

If  the  service  is  defective,  it  may  be  set  aside,  on  motion,  though 
the  return  on  its  face  is  good.  The  truth  of  the  return  may  be 
tested  on  such  motion.  If  the  copy  handed  to  defendant,  or  left 
at  his  usual  place  of  residence,  is  not  a  correct  copy  of  the  original 
summons,  or  if  the  indorsement  is  omitted  in  the  copy,  the  service 
will  be  set  aside  on  motion ;  so,  if  served  on  a  wrong  person,  or 
the  copy  is  not  left  at  the  right  place.  The  existence  of  any  fact 
showing  that  the  service  is  not  correct,  may  be  set  up  to  vacate  it. 
The  motion  should  state  the  grounds  on  which  the  party  relies  as 
showing  the  service  had. 

On  Insurance  Companies. — Service  here  may  be  made  on  an 
agent,  when  the  suit  is  properly  brought  in  a  county  where  the 
company  has  no  other  place  of  business. 

Foreign  Corporations. — The  service  in  such  cases  may  be  on  its 
managing  agent,  if  it  has  one  in  the  State.  A  managing  agent  is 
on"  whose  agency  extends  to  all  the  transactions  of  the  corpora- 
tion, in  distinction  from  one  who  manages  only  a  particular  branch 
of  its  business.     Brewster  v.  M.  Cen.  R.  R.  Co.,  5  Pr.  183. 


76  COMMENCEMENT    OF   ACTIONS. 

Service  on  Infants. 
On  persons  under  fourteen  years. — The  service  must  be  on  him  or 
her,  and  also  upon  his  or  her  guardian  or  father.  If  neither  of 
these  can  be  found,  then  upon  the  mother,  or  person  having  con- 
trol of  the  infant,  or  with  whom  he  or  she  lives.  If  neither  of 
these  can  be  found,  then  upon  the  minor  alone. 

On  persons  over  fourteen  years. — The  service  may  be  on  the 
minor  as  on  an  adult. 

Forms  of  Returns. 

DEPUTATION    OF    A    PRIVATE   PERSON   TO    SERVE   A   WRIT. 

I,  A  B,  sheriff  of  said  county  of  ,  do  hereby  appoint  C  ~D 

to  serve   the  within  writ.     Given  under  my  hand  this         day 

of  ,  a.  d.  18     . 

A  B,  Sheriff. 

RETURN. 

I,  the  above  named  C  D,  being  first  duly  sworn,  depose  and  say 
that  (here  state  the  service  as  in  return  by  sheriff),  and  further  he 
saith  not.  C  D. 

Sworn  to  and  subscribed  before  the  undersigned,  justice  of  the 
peace  (judge,  or  in  open  court,  as  the  case  may  be),  this        day  of 
,  a.  d.  18     . 

E.  F,  Justice  of  the  Peace. 

The  return  in  such  a  case  must  be  under  oath.     Sec.  61. 

RETURN   OF   PERSONAL    SERVICE. 

As  commanded  by  this  writ,  I  summoned  the  within   named 
,  on  the        day  of  ,  18     ,  by  delivering  to  each  of  said 

defendants  a  certified  copy  of  the  within  summons,  and  of  the  in- 
dorsement thereon. 

Dated 

A  B,  Sheriff. 

Note. — Where  the  parties  are  not  all  served  on  the  same  day, 
the  return  must  show  the  day  each  was  served  with  a  copy.  In 
such  case,  the  return  might  be  as  above  to  the  names  inclusive  ; 
then  adding : 


COMMENCEMENT   OF   ACTIONS.  77 

By  delivering  a  certified  copy  of  said  summons  and  the  in- 
dorsement thereon  to  the  said  L,  on  the  day  of  ,  to  the 
said  M  on  the        day  of            ,  etc. 

WHERE   PART    ARE   NOT   FOUND. 

Add  to  the  last,  inserting  in  it  the  names  of  those  summoned :  And 
the  said  are  not  found  in  this  county. 

SERVICE    ON   A    MINOR    UNDER   FOURTEEN   TEARS. 

As  commanded  by  this  writ,  I  summoned  the  said  BF,a  minor 
under  fourteen  years  of  age,  by  delivering  to  him  on  the  day 
of  ,  a.  d.  18     ,  a  certified  copy  of  the  within  writ,  and  of  the 

indorsement  thereon  (if  there  is  an  indorsement),  and  at  the  same 
time  I  also  delivered  to  ,  the  guardian  (or  father)  of  said 

minor,  another  certified  copy  of  said  writ  and  indorsement. 

Or,  and  at  the  same  time,  I  also  delivered  a  certified  copy,  etc.,  to 
,  the  mother  of  said  E  F.     Or,  to  ,  the  person  with 

whom  said  E  F  was  living,  not  being  able  to  find  in  my  county  any 
guardian  or  father  of  said  E  F. 

ANOTHER   FORM. 

Follow  the  last  to  the  close  of  the  service  on  the  minor,  then  proceed  : 
And  not  being  able  to  find  any  guardian  or  father  of  said  minor  in 
my  county,  I,  at  the  same  time,  delivered  a  certified  copy  of  the 
said  writ  and  indorsement  to  ,  the  mother  of  said  E  F  (or 

to  ,  the  person  with  whom  said  E  F  lives). 

If  none  of  these  persons  can  be  found  the  return  must  be :  And  I 
could  not  find  in  my  county  any  guardian,  or  father,  or  mother  of 
said  E  F,  or  any  person  having  control  of  him,  or  with  whom  said 
E  F  lives. 

SERVICE    ON    CORPORATION. 

1.  As  commanded  by  this  writ,  I  have  summoned  the  within- 
named  defendant,  to  wit  (here  insert  name  of  corporation)  :  by  de- 
livering to  A  B,  the  president  of  said  corporation,  a  duly  certified 
copy  of  the  within  summons  and  of  the  indorsement  thereon,  this 

day  of  ,  A.  D.  18     . 

W  L,  Sheriff. 

Note. — Where  the  chief  officer  of  the  corporation  is  a  mayor,  or 
chairman  of  directors  or  trustees,  the  party  on  whom  service  is  made 
must  be  so  named.  After  giving  the  name,  the  return  should  run  : 
The  mayor  of  said  city,  or  incorporated  town,  or  the  chairman  of  the 


78  COMMENCEMENT    OP   ACTIONS. 


directors  or  trustees  of  said  corporation  or  the  chief  officer  of  said  cor- 
poration. 

2.  As  commanded  by  this  writ,  I  have  summoned  said  (here  in- 
sert name  of  corporation),  by  delivering  to  A  B,  the  mayor  of  said 
corporation,  a  duly  certified  copy  of  the  within  summons,  with  a 
copy  of  the  indorsement  indorsed  thereon,  this        day  of  , 

a.  d.  18     . 

W  L,  Sheriff, 

By  1ST  O,  his  Deputy. 

3.  As  commanded  by  this  summons,  and  not  being  able  to  find 

any  president  (or  mayor,  chairman  of  the  directors  or  trustees,  as  the 

name  of  the  chief  officer  may  be,)  of   said  corporation  within  my 

county,  I  served  the  same  on  said  (here  give  name  of  corporation), 

by  delivering  a  true  and  duly  certified  copy  of  this  summons,  with 

the  indorsement '  thereon,  to  G  H,  the  cashier  (the  treasurer,  or  the 

secretary,  or  clerk,  or  the  managing  agent,)  of  said  corporation,  this 

day  of  ,  a.  d.  18     . 

S  M,  Sheriff. 

Note. — ln  the  absence  of  the  president,  or  other  chief  officer, 
the  writ  may  be  served  on  either  of  the  above-named  officers,  and 
not  on  the  second,  in  case  the  first  can  not  be  found. 

4.  As  commanded  by  this  writ,  and  not  bejng  able  to  find  any 
president,  cashier,  treasurer,  secretary,  clerk,  or  managing  agent 
of  said  corporation  in  my  county,  I  served  the  same,  by  leaving  a 
true  and  duly  certified  copy  of  this  summons,  and  the  indorsement 
thereon,  at  the  office  (or  usual  place  of  business)  of  said  corpora- 
tion with  one  J  K,  he,  the  said  J  K,  then  having  the  charge  thereof, 
on  this  day  of  ,  a.  d.  18     . 

W  L,  Sheriff, 

By  N  O,  his  Deputy. 

MUNICIPAL    CORPORATION. 

5.  As  commanded  by  this  writ,  and  not  being  able  to  find  any 
mayor  of  said  city  within  my  county,  I  served  the  same  on 
said  corporation,  by  delivering  a  true  and  duly  certified  copy  of 
this  writ,  and  the  indorsement  thereon,  to  one  C  D,  the  treasurer 
(or  clerk)  of  said  corporation,  this         day  of  ,  a.  d.  18     . 

WHERE    THE    CHIEF    OFFICER    HAS    NO    SPECIFIC    NAME. 

6.  As  commanded  by  this  writ,  I  have  served  the  same  on  said 
corporation,  by  delivering  a  true  and  duly  certified  copy  of  said 


COMMENCEMENT   OF   ACTIONS.  79 

writ,  together  with  the  indorsement  thereon,  to  one  A  B,  he,  said 
A  B,  being  the  chief  officer  of  said  corporation,  this        day  of 
,  a.  d.  18     . 

Note. — The  character  .of  the  return  will  depend  upon  the  char- 
acter of  the  act  of  incorporation.  A  city  has  a  mayor,  a  bank  or 
railroad  a  president  in  general  as  its  chief  officer;  while  townships 
have  trustees,  school  districts  directors,  with  a  chairman  as  chief 
officer.  It  is  not  necessary  to  recite  any  other  chief  officer  than 
the  one  made  such  by  law. 

7.  As  commanded  by  this  writ,  I  have  served  the  same  on  said 
corporation,  by  delivering  a  true  and  duly  certified  copy  of  said 
writ,  and  of  the  indorsement  thereon,  to  one  A  B,  the  chairman  of 
the  trustees  of  said  corporation,  this         day  of  ,  a.  d.  18     . 

8.  As  commanded  by  this  writ,  and  not  being  able  to  find  any 
chairman  of  the  trustees  of  said  corporation  within  my  county,  I 
have  served  tbe  same  on  said  corporation,  by  delivering  a  true  and 
duly  certified  copy  of  said  writ,  and  of  the  indorsement  thereon, 
to  one  E  F,  the  clerk  (or  treasurer)  of  said  corporation,  this 
day  of  ,  a.  d.  18     . 

Note. — The  name  is  given  to  the  chief  officer  by  the  law  of  in- 
corporation, and  the  return  must  use  that  name  and  no  other.  It 
will,  therefore,  be  necessary,  for  the  sheriff  to  know  what  the 
charter  is,  and  by  what  name  its  officers  are  called.  It  is  the  busi- 
ness of  the  attorney  who  brings  the  suit  to  give  the  sheriff  this  in- 
formation, and  instruct  him  how  to  make  the  service,  and  the 
proper  form  of  the  return.  In  a  case  of  any  uncertainty  in  the 
mind  of  the  sheriff,  he  should  consult  the  attorney  of  the  plaintiff 
and  follow  his  advice,  and  then  the  plaintiff  can  not  complain  of 
what  he  does.  Is  the  chief  officer  of  the  corporation  sued,  called 
in  the  law  a  president,  a  mayor,  chairman  of  a  board  of  directors, 
or  trustee,  or  other  name  ?  This  fact  being  ascertained,  the  service 
must  be  on  him;  if  ho  can  not  bo  found,  then  on  the  cashier, 
treasurer,  or  clerk.  It  is  not  necessary  in  a  return  against  a  bank 
or  railroad,  the  chief  officer  of  which  is  called  a  president,  to  re- 
turn that  you  can  find  no  maj^or,  chairman,  or  other  chief  officer  ; 
it  is  only  necessary  to  say  you  can  not  find  the  president,  that  be- 
ing its  only  chief  officer.  It  is  enough  to  say  you  can  not  find 
him,  to  justify  a  service  on  the  second  grade  of  officers.     Banks 


80  COMMENCEMENT    OP    ACTIONS. 

have  a  cashier,  railroads  a  treasurer  and  secretary  or  clerk.  The 
cashier  is  the  secretary  or  clerk  of  a  bank.  There  are  other  cor- 
porations, where  a  hoard  of  directors  appoint  a  chairman;  while 
the  trustees  of  townships,  the  commissioners  of  the  county,  ap- 
point a  chairman.  These  things  understood,  there  is  little  difficulty 
in  making  a  correct  service. 

SERVICE    ON    AGENT    OP   INSURANCE    COMPANY. 

As  commanded  by  this  writ,  I  summoned  the  within-named  de- 
fendant, by  delivering  on  the  day  of  ,  A.  d.  18  ,  to  E  F, 
the  chief  officer  of  the  agency  of  said  company  in  this  county,  a 
certified  copy  of  the  within  writ,  and  the  indorsement  thereon. 

Dated,  etc. 

SERVICE    ON    A    FOREIGN   CORPORATION. 

As  commanded  by  this  writ,  I  have  summoned  the  within-named 
defendant  {here  insert  corporate  name,  if  no  other  defendant  is  named 
in  the  writ),  by  delivering,  on  the         day  of  ,  a.  d.  18     ,  to 

E  F,  a  certified  copy  of  this  writ  and  the  indorsement  thereon,  the 
said  E  F  being  the  managing  agent  of  the  (name  of  corporation), 
in  this  State. 

Dated,  etc. 

Sec.  70.  Service  may  be  made  by  publication  in  either  of  the 
following  cases : 

In  actions  brought  to  establish  or  set  aside  a  will,  where  any  or 
all  the  defendants  reside  out  of  the  State. 

In  actions  brought  under  sections  45  and  46  of  this  code,  where 
any  or  all  the  defendants  reside  out  of  the  State. 

In  actions  brought  against  a  non-resident  of  this  State,  or  a  for- 
eign corporation,  having  in  this  State  property  or  debts  owing  to 
them,  sought  to  be  taken  by  any  of  the  jirovisional  remedies,  or  to 
be  appropriated  in  any  way. 

In  actions  which  relate  to  or  the  subject  of  which  is  real  or  per- 
sonal property  in  this  State,  where  any  defendant  has  or  claims  a 
lien  or  interest,  actual  or  contingent,  therein,  or  the  relief  de- 
manded consists  wholly  or  partly  in  excluding  him  from  any  in- 
terest therein,  and  such  defendant  is  a  non-resident  of  the  State  or 
a  foreign  corporation. 

And  in  all  actions  where  the  defendant  being  a  resident  of 
the  State,  has  departed  therefrom,  or  from  the  county  of  his  resi- 
dence, with  intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the 


COMMENCEMENT  OP   ACTIONS.  81 

service  of  a  summons,  or  keeps  himself  concealed  therein  with  the 
like  intent. 

Sec.  71.  Before  service  can  be  made  by  publication,  an  affidavit 
must  be  filed,  that  service  of  a  summons  can  not  be  made  within 
this  State,  on  the  defendant  or  defendants  to  be  served  by  publica- 
tion, and  that  the  case  is  one  of  those  mentioned  in  the  preceding 
section.  When  such  affidavit  is  filed,  the  party  may  proceed  to 
make  service  by  publication. 

Sec.  72.  The  publication  must  be  made  six  consecutive  weeks,  in 
some  newspaper  printed  in  the  county  where  the  petition  is  filed, 
if  there  be  any  printed  in  such  county ;  and  if  there  be  not,  in 
some  newspaper  printed  in  the  State,  of  general  circulation  in 
that  county.  It  must  contain  a  summary  statement  of  the  object 
and  prayer  of  the  petition,  mention  the  court  wherein  it  is  filed, 
and  notify  the  person  or  persons  thus  to  be  served,  when  they  are 
required  to  answer. 

Sec  73.  Service  by  publication  shall  be  deemed  complete  when 
it  shall  have  been  made  in  the  manner  and  for  the  time  prescribed 
in  the  preceding  section ;  and  such  service  shall  be  proved  by  the 
affidavit  of  the  printer,  or  his  foreman,  or  principal  clerk,  or  other 
person  knowing  the  same. 

Sec  74.  In  all  cases  where  service  may  be  made  by  publication, 
personal  service  of  a  copy  of  the  summons  and  complaint  may  be 
made  out  of  the  State. 

AFFIDAVIT   THAT   SUMMONS   CAN   NOT   BE   MADE. 

A  B,  plaintiff,  ~1  „      . 

'  lvs  {  County,  ss. 

CD,BF,GH,L  M.  and  N  O,  defendants.  )  Court  of  Common  Pleas. 
And  the  said  A  B,  plaintiff  in  the  above  case,  being  first  duly 
sworn,  deposeth  and  saith,  that  on  the         day  of  ,  a.  d.  18 

he  filed,  in  the  said  Court  of  Common  Pleas,  a  petition  against  the 
said  C  D,  E  F,  G  H,  L  M,  and  N  O,  defendants,  praying  that  (here 
set  forth  the  object  of  the  suit,  so  as  to  show  it  is  one  of  the  cases  where 
publication  can  be  had,  as  for  instance)  certain  lands,  situate  in  said 
county,  may  be  decreed  to  be  sold,  to  satisfy  a  mortgage  given  by 
the  said  C  D  to  the  said  plaintiff,  to  secure  the  payment  of  a  cer- 
tain sum  of  money  therein  named,  and  the  said  C  D  has  since  con- 
veyed said  premises  to  the  said  other  defendants;  and  the  said 
plaintiff  further  saith  that  the  said  C  D  has  removed  from  the  State 
of  Ohio,  and  now  lives  in  the  State  of  Iowa;  and  that  the  service 
vol.  i — G 


82  COMMENCEMENT   OP   ACTIONS. 

of  a  summons  can  not  be  made  on  the  said  C  D  within  this  State ; 
and  the  said  plaintiff  wishes  to  obtain  a  service  on  the  said  C  D 
by  publication  ;   and  further  he  saith  not. 

AB. 

Sworn  to  and  subscribed  before  the  undersigned,  a  justice  of  the 
peace  (or  judge  or  clerk  of  said  court),  this        day  of  ,  a.  d. 

18     . 

,  Justice  of  the  Peace. 

NOTICE. 

C  D,  of  ,  in  the  State  of  Iowa,  will  take  notice  that  A  B, 

of  the  county  of  ,  in  the  State  of  ,  did,  on  the         day 

of  ,  a.  d.  18     ,  file  his  petition  in  the  Court  of  Common  Pleas 

within  and  for  the  county  of  ,  in  said  State  of  Ohio,  against 

the  said  C  D  and  B  F,  G  H,  L  M,  and  N  O,  defendants  setting 
forth  (here  insert  the  substance  of  the  petition,  as  for  example)  that 
the  said  C  D  gave  a  mortgage  to  the  said  A  B  on  the  S.  W.  qr. 
of  Sec.   No.   2,   T.  7,  K.   15,  in  said   county  of  ,  to  secure 

the  payment  of  $  ,  according  to  certain  notes  referred  to  in 
said  mortgage,  and  that,  since  the  giving  of  the  said  mortgage,  the 
other  defendants  claim  some  interest  in  said  lands  under  the  said 
C  D,  and  praying  that  said  C  D  may  pay  said  sum  now  claimed 
to  be  due,  with  interest,  amounting  to  $  ,  or  that  said  premises 
may  be  sold  to  pay  the  same ;  and  the  said  C  D  is  notified  that  he 
is  required  to  appear  and  answer  said  petition,  on  or  before  the 
third  Saturday  after  the        day  of  next. 

Dated  ,  a.  d.  18     . 

A  B,  by  E  F,  his  Attorney. 

Note. — The  service  will  be  completed  on  the  day  of  the  last  or 
sixth  publication,  and  the  time  to  answer  will  be  the  third  Satur- 
day after  that  day. 

The  statement  above,  without  the  authority  of  adjudged  cases, 
was  made  in  the  first  edition,  as  a  proposition  as  to  which  there 
was  no  doubt.  The  Court  of  Common  Pleas  and  the  Supreme 
Court  on  the  circuit  had  so  held  for  the  whole  limit  of  my  practice, 
commencing  in  1833,  and  I  supposed  that  the  law  thus  recognized 
and  acted  upon  was  placed  beyond  doubt.  But  it  seems  that  to 
some  minds  the  code  had  unsettled  everything,  and  a  new  construc- 
tion was  to  be  given  to  language  embodied  in  our  legislation  for 
over  fifty  years,  and  early  construed,  and  that  construction  followed 


COMMENCEMENT    OP   ACTIONS.  83 

during  all  that  time  This  position  has  been  called  in  question, 
and  ruling  mado  in  direct  contravention  of  the  language  of  the 
code  and  the  decisions  and  practice  of  fifty  years.  I  may,  there- 
fore, examine  the  words  of  the  statute  and  the  decisions  of  court 
thereon. 

There  are  two  modes  of  expression  in  reference  to  giving  a  no- 
tice by  publication  :  one  mode  of  expression  is  that  notice  shall  be 
given  so  many  days  before  an  act  is  to  be ;  the  other  is  by  a  pub- 
lication for  so  many  consecutive  weeks  in  some  newspaper.  The 
first  of  these  forms  of  expression  came  under  consideration  in  the 
case  of  Muskingum  Valley  Turnpike  Co.  v.  Ward,  13  Ohio,  120. 
The  act  in  that  case  declared  that  at  least  sixty  days'  notice  should 
be  given,  in  sorao  public  paper  in  general  circulation,  of  the  time 
and  place,  or  places,  of  paying  in  the  installments.  The  court  held 
that  one  publication,  sixty  days  prior  to  the  day  fixed  for  the  pay- 
ment of  the  installment,  was  sufficient,  and  that  it  need  not  con- 
tinue to  be  published  from  week  to  week  during  that  time.  This 
construction  filled  the  words  of  the  statute.  The  court  say  :  "  This 
position  (that  the  notice  should  be  published  continuously  for  sixty 
days)  stands  upon  the  hypothesis  that  '  at  least  sixty  days'  notice  ' 
is  equivalent  to  '  notice  for  and  during  sixty  days.'  The  words  are, 
however,  not  equivalent.  A  notice  published  once,  sixty  days  or 
more  before  the  time  of  payment,  is  all  that  the  statute  requires. 
Its  letter  is  complied  with  by  that.  We  are  not  left  at  liberty  to 
imagine  or  suppose,  in  this  case,  that  one  thing  is  expressed  and 
another  Intended,  because  whenever  the  legislature  have  designed 
that  a  continuous  notice  should  be  given,  they  have  used  explicit 
terms."  The  same  ruling  was  made  in  Tabler  v.  Wiseman,  10 
West.  Law  Jour.  207.  The  statute  is  silent  as  to  the  number  of 
times  the  notice  shall  bo  published,  say  the  court,  but  simply  re- 
quires a  notice  to  be  published  forty  days  prior  to  the  term  of  the 
court.  A  single  notice,  inserted  forty  days  prior  to  the  term,  is  a 
compliance  with  the  language  of  the  statute,  and  we  know  of  no 
decision  to  prevent  us  from  holding  a  single  publication,  made  forty 
days  prior  to  the  term,  sufficient."  This  was  a  case  in  partition. 
The  notice  was  published  from  March  11,  1852,  to  the  15th  of 
April,  and  the  term  of  the  court  began  on  the  17th  of  May.  The  ob- 
jection was  that  the  publication  was  not  continued  till  the  term  of  the 
court.     The  same  doctrine  is  asserted  in  Craig  v.  Fox,  1G  Ohio,  563. 

The  present  statute  saj-s  that  "the  publication  must  be  mado  six 
consecutive  weeks."  The  next  section  (section  73)  says  service  by 
publication  shall  be  deemed  complete  when  it  shall  have  been  made 


84  COMMENCEMENT   OP   ACTIONS. 


in  the  manner  and  for  the  time  prescribed  in  the  preceding  sec- 
tion. This  act  requires  six  publications  in  six  consecutive  weeks, 
and  that  the  service  is  complete  when  this  is  done.  The  letter  of 
the  statute  is  then  complied  with  when  the  six  successive  weekly 
publications  have  been  made.  What  authority  have  the  court  here 
to  interpolate  into  the  statute  that  the  first  publication  shall  be  made 
at  least  forty -two  days  prior  to  the  time  fixed  for  the  answer?  The 
same  reason  which  induced  the  court  to  hold  one  publication  in 
the  former  case  sufficient,  will  constrain  it  to  hold  that  the  service 
is  complete  on  the  day  after  the  last  publication ;  the  statute  so 
says,  and  the  court  must  so  hold.  But  this  question  has  been  re- 
peatedly under  the  consideration  of  the  court. 

The  first  case  to  which  I  will  refer,  is  that  of  Batchelor  v.  Batch  - 
elor,  1  Mass.  255.  The  statute  required  the  notice  to  be  published 
three  weeks  consecutively.  It  was  published  on  Saturday,  June  30 ; 
secondly,  on  Saturday,  July  7  ;  and  thirdly,  on  Wednesday,  July 
11.  It  was  objected  that  there  was  not  a  week  between  the  two 
last  publications.  "  The  court  held  that  the  order  had  been  sub- 
stantially complied  with.  They  said  it  was  usual,  however,  to 
publish  with  an  interval  of  a  week,  but  that  it  was  not  strictly 
necessary;  the  publication  had  been  made  in  three  successive  weeks, 
which  is  sufficient."  The  same  doctrine  is  asserted  in  the  case  of 
Frothingham  v.  March,  1  Mass.  247. 

The  next  case  is  that  of  Sheldon  v.  Wright,  3  Selden,  497.  The 
statute  of  New  York  required  that  notice  of  an  order  to  show  cause 
in  Probate  Court  why  lands  should  not  be  ordered  to  be  sold  for  the 
payment  of  debts,  should  be  given  not  less  than  six  nor  more  than 
ten  weeks  from  the  time  of  making  it,  to  be  published  immediately 
for  four  successive  weeks.  It  was  held  that  four  successive  weekly 
publications,  before  the  day  fixed  for  showing  cause,  was  sufficient. 
Gray,  J.,  in  his  dissenting  opinion,  thus  states  the  position  decided 
by  the  court:  "  The  position  assumed  by  the  defendant  and  sanc- 
tioned by  the  court  below,  was  that  a  publication  of  the  order  for 
four  weeks  successively,  immediately  preceding  the  day  for  show- 
ing cause,  was  all  that  the  statute  required,  and  that  its  require- 
ments, in  that  respect,  were  satisfied  by  a  publication  once  in  each 
week  for  four  weeks  successively,  previous  to  the  day  appointed 
for  showing  cause,  notwithstanding  the  first  publication  was  less 
than  four  weeks  prior  to  that  day."  This  proposition  the  majority 
of  the  court,  by  seven  to  one,  held  to  be  law,  by  affirming  the 
judgment  of  the  court  below.  Foot,  in  delivering  the  opinion  of 
the  majority  of  the  court,  says  :  "  I  have  no  doubt  that  the  decision 


COMMENCEMENT    OP   ACTIONS.  85 

of  the  surrogate  was  correct  in  respect  to  the  time  and  manner  of 
publishing  the  order  to  show  cause.  It  was  in  accordance  with  the 
language  of  the  statute,  and  there  does  not  appear  to  be  any  reason 
for  a  different  construction.  The  decision  of  the  Supreme  Court  of 
Massachusetts,  in  the  case  of  Batchelor  v.  Batchelor,  1  Mass.  255,  is 
directly  in  point,  and  appears  to  have  been  better  considered  and 
to  rest  on  sounder  reasons  than  the  adversary  opinion  of  our  own 
court,  in  an  anonymous  case  involving  the  same  question.  1  "Wend. 
90."     S.  C,  7  Barb.  39. 

This  question  came  up  again  in  the  case  of  Olcott  v.  Bobinson, 
21  N.  Y.  150.  The  statute  of  that  State  required  a  notice  of  a 
sheriff's  sale  to  be  published  once  in  each  week,  for  six  consecutive 
weeks  successively  before  the  sale.  The  notice  in  this  case  was 
published  first  on  Saturday,  March  30,  and  the  last  publication  on 
Saturday,  May  4,  and  the  sale  took  place  on  May  8.  The  court 
held  that  this  notice  was  sufficient.  Davies,  J.,  in  delivering  the 
opinion  of  the  court,  cites  the  words  of  Wells,  J.,  in  Sheldon  v. 
Wright,  7  Barb.  39,  in  which  he  says:  "The  first  publication, 
which  was  on  the  27th  day  of  September,  was  less  than  four  weeks 
before  the  19th  day  of  October,  when  the  parties  were  required  to 
show  cause,  etc.  This,  as  a  matter  of  fact,  will  be  seen,  upon  a 
computation  of  time,  to  be  true.  But  I  do  not  understand  the  act 
to  require  the  first  of  the  four  successive  publications  to  be  four 
weeks  before  the  day  of  showing.  The  requirement  is  satisfied  by 
four  successive  weekly  publications  before  the  day."  "  And  such," 
continues  Davies,  J.,  "  the  learned  justice  says  has  been  the  prac- 
tical construction  of  the  provision  of  the  insolvent  laws  requiring 
notice  to  creditors  to  be  published,  in  one  class  of  cases,  six  weeks, 
and,  in  another,  ten  weeks.  This  case  was  brought  up  on  appeal 
(1  Selden,  497)  to  this  court,  and  the  judgment  below  affirmed. 
.  .  .  It  would  seem,  therefore,  that  the  weight  of  authority  pre- 
ponderates decidedly  in  favor  of  holding  that  the  publication  of 
the  notice  in  the  present  case  was  sufficient.  ...  I  do  not 
think  the  statute  is  to  be  construed  in  a  manner  to  lead  to  such  re- 
sults, but  that  its  plain  and  literal  import  is  to  be  followed." 

These  cases  settle  the  construction  to  be  given  to  these  words, 
six  consecutive  weeks,  as  used  in  various  statutes  in  reference  to  the 
publication  of  a  notice.  Its  plain  meaning  is  six  publications  in 
six  consecutive  weeks,  and  nothing  more.  Hence,  the  publication 
ifi  complete  on  the  day  of  the  last  publication.  The  only  case 
against  this  construction  is  the  anonymous  one  in  1  Wend.  90,  and 
that  has  been  overruled  by  the  Court  of  Appeals  of  the  same  State. 


86  COMMENCEMENT    OP   ACTIONS. 

The  plain  reading  of  the  statute  is  the  one  that  should  be  adopted 
and  followed,  as  it  has  always  been  in  this  State..  The  six  pub- 
lications are  all  that  is  required,  and  when  those  are  conrpleted  the 
service  is  completed.  Such  is  my  recollection  of  the  rulings  in 
every  case  where  the  statute  requires  a  notice  to  be  published  so 
many  consecutive  weeks. 

AFFIDAVIT    OF   PUBLICATION. 

G  H,  being  first  duly  sworn,  deposes  and  saith  that  he  is  the 
printer  of  the  ,  a  newspaper  printed  and  published  in  the 

said  county  of  ,  and  that  the  annexed  notice  was  published 

in  said  paper  for  six  consecutive  weeks,  the  last  publication  being 
on  Thursday  (or  other  day),  July  ,  a.  d.  18     ,  and  further  he 

saith  not. 

Sworn  to  and  subscribed  in  open  court  this        day  of  , 

a.  d.  18     . 

Attest,  J  D,  Clerk. 

Note. — The  affidavit  may  be  sworn  to  before  a  justice  or  other 
officer  authorized  to  administer  oaths  generally. 

AFFIDAVIT   ATTACHED   TO   A   PETITION   OF   UNKNOWN   HEIRS. 

The  said  A  B,  plaintiff,  being  first  duly  sworn,  deposeth  arid 
saith  that  the  names  and  residence  of  the  heirs  of  the  said  , 

named  in  said  petition,  are  unknown  to  him,  the  said  A  B,  and  fur- 
ther he  saith  not. 

AB. 

Sworn  to  and  subscribed  before  me,  the  clerk  of  said  court,  this 

day  of  ,  a,  d.  18     . 

J  D,  Clerk. 

ORDER   OF  PUBLICATION. 

On  motion  of  the  said  A  B,  by  E  F,  his  attorney,  and  it  appear- 
ing to  the  court  by  the  affidavit  of  the  said  A  B,  attached  to  his 
petition,  that  the  names  and  residences  of  the  heirs  of  the  said  L 
M  are  unknown  to  the  said  plaintiff,  it  is  therefore  ordered  that  the 
said  plaintiff  cause  a  notice  containing  the  substance  and  prayer 
of  said  petition,  and  of  the  pendency  of  this  action,  to  be  pub- 
lished for  six  consecutive  weeks  in  the  ,  a  newspaper  printed 
in  ,  in  this  county,  informing  the  said  unknown  heirs  of  the 
said  L  M  that  they  must  appear  and  answer  said  petition,  on  or 
before  the  third  Saturday  next  after  the  day  of  the  last  or  sixth 
publication. 


APPEARANCE.  87 


The  following  is  the  section  in  regard  to  unknown  heirs : 
Sec.  76.  In  actions  where  it  shall  be  necessary  to  make  the  heirs 
or  devisees  of  any  deceased  person  defendants,  and  it  shall  appear 
by  the  affidavit  of  the  plaintiff,  annexed  to  his  petition,  that  the 
names  of  such  heirs  or  devisees,  or  any  of  them,  and  their  resi- 
dence, are  unknown  to  the  plaintiff,  proceedings  may  be  had 
against  such  unknown  heirs  or  devisees,  without  naming  them; 
and  the  court  shall  make  such  order  respecting  service  as  may  be 
deemed  proper.  If  service  by  publication  be  ordered,  the  publica- 
tion shall  not  be  less  than  six  weeks. 

When  may  proceed  without  Service  on  all. 

1.  If  the  action  be  against  defendants  jointly  indebted  upon  con- 
tract, the  plaintiff  may  proceed  against  the  defendants  served,  un- 
less the  court  otherwise  direct. 

2.  If  the  action  be  against  defendants  severally  liable,  the 
plaintiff  may,  without  prejudice  to  his  rights  against  those  not 
served,  proceed  against  the  defendants  served,  in  the  same  man- 
ner as  if  they  were  the  only  defendants. 


CHAPTER  VII. 


APPEAEANCE. 

After  the  filing  of  the  petition  and  the  service  of  the  summons, 
the  next  step  is  the  appearance  of  the  defendant. 

Every  defendant  has  the  right  to  appear  in  person  or  by  attor- 
ney, excepting  married  women,  infants,  and  persons  non  compos  mentis. 

The  mode  of  entering  an  appearance  is  various.  It  may  be  by 
entering  on  the  record  that  the  defendant  now  comes  and  enters 
his  appearance,  by  asking  leave  to  file  a  motion,  unless  that  mo- 
tion is  one  to  vacate  a  service,  and  by  entering  a  notice  for  an  ap- 
peal or  a  second  trial.  As  to  these  last  cases,  vide  the  case  of  Fee 
v.  Big  Sand  Iron  Co.,  13  Ohio  St.  563.  In  this  case,  where  there 
had  been  a  defective  service  and  judgment  on  default,  it  was  held 
that  the  entering  of  notice  of  appeal  by  the  defendant  was  a 
waiver  of  the  want  of  service.     I  do  not  believe  this  case  to  bo 


88  APPEARANCE. 


law.  The  case  had  gone  to  judgment,  and  the  court  bad  completed 
its  jurisdiction  by  rendering  tbe  judgment.  The  defendant  was 
simply  exercising  a  right  given  by  statute  to  enter  his  intention  to 
appeal.  He  did  not  appeal.  He  did  nothing  under  tbe  notice ; 
and  it  seems  to  me  the  case  stands  as  if  no  such  entry  had  been 
made.  And  it  seems  a  strange  application  of  the  doctrine  of  ap- 
pearance to  bold  a  party  as  to  what  has  taken  place  already,  sim- 
ply because  ho  gives  notice  of  his  intention  to  do  something  in  tbe 
case.  This,  in  my  opinion,  was  not  an  appearance  to  the  action ; 
it  was  simply  giving  a  notice  of  an  intention  to  do  sometbing  in 
future.  It  is  giving  a  retroactive  effect  to  an  act  which  is  a  mere 
notice,  and  not  an  appearance.  The  court  assume  that  this  is  an 
appearance  to  the  action.  This  is  just  wbat  I  do  not  understand 
it  to  be.  It  is  not  an  appearance  to  tbe  action,  because  the  court 
at  that  time  had  no  jurisdiction  over  the  action.  Tbe  statute  re- 
quires notice  to  be  entered  on  tbe  minutes  by  the  party  intending 
to  appeal.  He  enters  this  notice  himself,  and  the  court  has  nothing 
to  do  with  it,  as  I  understand  the  statute.  The  decision,  so  far  as 
I  have  heard  it  mentioned,  has  not  satisfied  the  profession.  The 
giving  of  the  notice  goes  for  nothing,  if  the  appeal  is  not  perfected. 
Such  has  always  been  my  understanding  of  tbe  statute.  A  con- 
trary view  of  the  law  seems  to  be  held  by  the  Supreme  Court  of 
Missouri  in  the  case  of  Schell  v.  Leland,  45  Mo.  289,  where  it  was 
held  that  the  appearance  of  tbe  defendant  for  tbe  especial  purpose 
of  moving  the  court  to  arrest  a  judgment,  constitutes  no  waiver  of 
any  valid  objection  which  he  may  have  to  defective  process  and 
service.  So  again,  in  the  case  of  Steinbach  v.  Leese,  27  Cal.  295, 
it  was  held  that  a  defendant,  by  giving  notice  of  appeal  from  a 
decree,  does  not  appear  witbin  the  meaning  of  a  practice  act  which 
provides  that  a  defendant  sball  be  deemed  to  appear  to  an  action 
when  he  answers,  demurs,  or  gives  the  plaintiff  a  written  notice 
of  appearance.  The  language  of  this  statute  truly  defines  what  is 
an  appearance,  only  substituting  tbe  written  notice  for  the  usual 
record  entry  that  the  defendant  enters  his  appearance.  So  a 
special  appearance  by  a  defendant,  for  the  sole  purpose  of  moving 
to  set  aside  the  service  of  the  summons,  is  not  a  waiver  "of  the  de- 
fect objected  to.  Upper  Miss.  Co.  v.  Wbittaker,  16  Wis.  220.  The 
rule  is  thus  stated  in  many  cases,  and  is  the  true  one.  A  defendant, 
who  has  appeared  and  pleaded  to  the  merits,  can  not  afterward  ob- 
ject to  the  jurisdiction  of  tbe  court  on  the  ground  of  the  insuffi- 
ciency of  the  service  of  the  writ.  Lawrence  v.  Bassett,  5  Allen, 
(Mass.)  140  ;   Indianapolis,  etc.,  K.  R.  Co.  v.  Eenner,  17  Ind.  135  ; 


APPEARANCE.  89 


Eingle  v.  Bickle,  17  Ind.  325 ;  Brady  v.  Bichardson,  18  Ind.  1. 
But  the  party's  appearance  by  attorney  to  move  for  the  dismissal 
of  an  attachment,  and  to  except  to  the  jurisdiction  of  the  court 
over  him,  can  not  be  construed  into  a  submission  to  the  jurisdiction 
which  would  authorize  a  judgment  in  personam.  Billiu  v.  White, 
15  La.  An.  624.  Proceeding  to  trial,  after  first  appearing  with  a 
motion  to  dismiss,  for  defect  in  the  summons,  which  is  overruled, 
is  no  waiver  of  the  irregularity.  Deidesheimer  v.  Brown,  8  Cal. 
339.  An  appearance  and  answer  waive  defects,  and  give  juris- 
diction. Buckfield  Br.  B.  B.  Co.  v.  Benson,  43  Maine,  374 ;  Blood 
v.  Crandall,  2  Wms.  (Vt.)  396  ;  Cushingham  v.  Phillips,  1E.D. 
Smith,  416  ;  Dewart  v.  Purdy,  29  Penn.  St.  113.  So  a  plea  in 
abatement  is  not  such  an  appearance  as  to  waive  process.  It  may 
be  abandoned,  and  a  motion  made  to  quash  for  defective  service. 
Halsey  v.  Hurd,  6  McLean,  14.  These  authorities  all  look  to  an 
appearance  to  the  action  and  proceeding  therein.  The  giving  no- 
tice of  appeal  is  no  appearance  to  the  action  ;  because,  after  judg- 
ment, there  is  no  case  pending  in  the  court  to  which  an  appearance 
could  be  made.  The  case  from  Missouri  is  the  sounder  rule,  that 
even  a  motion  in  arrest  is  no  waiver  of  a  defective  service.  I  be- 
lieve no  case  can  be  found  which  will  support  the  ruling  in  Fee  v. 
Big  Sand  Iron  Co.  Neither  of  the  cases  cited  by  the  court  sustain 
this  ruling.  In  both  of  these  cases  the  appearance  was  to  the  ac- 
tion, and  entered  before  judgment.  In  the  first  case  the  defendant 
had  filed  a  demurrer  to  the  petition,  and  in  the  last  case  the  de- 
fendant had  consented  to  the  entry  of  the  judgment  on  the  power 
of  attorney.  Both  of  those  cases  come  within  the  generally  re- 
ceived rule,  that  the  party  appears,  before  judgment,  and  pleads  to 
the  action.  If,  in  the  case  of  Fee  v.  Big  Sand  Iron  Co.,  supra,  the 
defendant  had  given  bond,  and  filed  his  appeal  in  the  court  above, 
he  would '  have  entered  his  appearance  in  that  court,  and  been 
bound  by  any  judgment  rendered,  so  far  as  any  defect  in  the  ser- 
vice was  concerned. 

Married  Women. 
Married  women  must  appear  with  their  husband,  or  by  their 
next  friend.  When  the  interest  of  husband  and  wife  is  joint,  then 
they  may  appear  and  answer  together.  Still  the  wife  may  defend 
and  answer  separately ;  but  it  requires  an  order  of  the  court  to 
enable  her  to  do  it.  Wfiore  the  wife  is  sued  on  her  separate  prop- 
erly, she  most  defend  by  her  next  friend,  and  can  do  this  without 
any  application  to  tho  court. 


90  APPEARANCE. 


The  code  was  amended  by  the  act  of  April  18,  18G9,  by  which 
section  28  was  so  amended  as  to  enable  a  married  woman  to  pros- 
ecute or  defend  any  action  without  any  next  friend.  67  Ohio  L. 
Ill,  sec.  1.  A  married  woman  now  can  defend  in  her  own  name, 
as  a  feme  sole,  in  all  cases.  The  statute  is:  "But  in  no  case  shall 
she  be  required  to  prosecute  or  defend  by  her  next  friend. 
Wherever  a  next  friend  was  formerly  required,  none  is  now  re- 
quired. Where  husband  and  wife  are  sued  together  for  the  tort  of 
the  wife,  the  husband  defends  and  controls  the  disposition  of  the 
action  without  regard  to  the  wishes  of  the  wife."  Coolidge  and 
wife  v.  Parris,  8  Ohio  St.  694.  The  court  say  :  "  The  right  of  the 
wife,  mentioned  in  the  code,  is  undoubtedly  a  right  involved  in  the 
controversy,  and  its  provisions  are  applicable  to  equity  cases  in 
which  the  separate  rights  of  the  wife  are  by  decrees  recognized  and 
passed  upon  as  distinct  from  the  rights  of  the  husband.  Her  in- 
choate right  of  dower  in  premises  mortgaged  by  her  and  hus- 
band;  her  interests  and  rights  in  her  separate  property,  and  in 
property  which  came  to  the  husband  by  her,  are  recognized  and 
frequently  passed  upon  by  decree  ;  and,  under  the  code,  she  may, 
in  such  cases,  defend  her  own  right. 

"  But  when  the  action,  as  in  the  case  now  before  us,  involves  no 
separate  rights  of  the  wife,  and  in  which  no  order  or  judgment  can 
be  rendered,  except  a  joint  one,  affecting  both  jointly,  the  provis- 
ion of  the  code  can  not  be  applied.  Her  right  in  the  action,  and 
the  right  of  her  husband,  are  inseparable  ;  and,  if  they  separated 
in  the  defense,  the  court  could  not,  as  has  been  before  said,  proceed 
to  judgment  except  jointly  against  both." 

The  judge  (Swan)  further  says:  "The  husband  and  wife  are 
deemed,  in  many  respects,  one  person  in  law.  When  sued  jointly, 
and  for  a  cause  of  action,  which  can  not  be  maintained  except  by 
showing  a  joint  liability,  and  in  which  they  must  plead  jointly, 
and  one  joint  judgment  must  be  rendered  against  them,  there  is 
necessarily  a  unity,  which  can  not  be  severed.  In  such  a  case,  if 
any  separate  control  over  the  action  can  be  recognized  in  the  wife, 
it  can  only  be  done  by  making  the  rights  and  power  of  the  hus- 
band subservient  to  her.  If  the  wife  may  control  the  conduct  of 
the  action  or  defense  in  another  and  different  way,  it  must  be  done 
by  permitting  them  to  plead  separately,  and  to  sever  in  the  trial. 
This  would  do,  if  the  cause  of  action  were  such  that  separate  and 
different  judgments  could  be  rendered  against  them.  But  in  an  ac- 
tion like  the  one  before  us,  the  judgment  must  be  single  and  joint ; 
and  whatever  might  be  the  result  of  a  separate  defense  made  by 


APPEARANCE.  91 


the  wife,  contrary  to  the  wishes  of  the  husband,  he  would  be  ulti- 
mately liable  jointly  with  her  for  the  costs,  expenses,  and  judg- 
ment against  her.  After  all,  it  is  a  question  whether  the  wife  shall 
control  the  husband,  or  the  husband  shall  control  the  wife,  when 
there  is  a  unity  of  interest,  and  they  differ.  We  are  not  prepared 
to  depart  from  the  old  rule,  which  makes  the  husband  the  head  of 
the  wife.  And  such  is  the  common  law.  Hence,  when  sued 
jointly,  service  of  process,  at  common  law,  was  sufficient  on  the 
husband  alone,  and  he  could  appear  and  confess  judgment  for  both." 
Evans  v.  Mylert,  19  Penn.  St.  402  ;  Benjamin  and  wife  v.  Bartlett, 
3  Mo.  86. 

The  action  in  the  above  case  was  an  action  against  husband  and 
wife  for  slanderous  words  spoken  by  the  wife.  The  same  rule  ap- 
plies to  all  actions  against  husband  and  wife  for  the  torts  of  the 
wife.  In  .all  these  cases  there  is  a  joint  liability  and  a  joint  judg- 
ment, and  it  would  seem  that  the  husband  must  defend  for  both, 
unless,  refusing  to  defend,  the  wife  obtains  permission  to  defend 
for  him. 

Infants. 

Infants  must  defend  by  their  guardian.  Before  an  answer  can 
be  put  in  by,  or  a  judgment  taken  against,  an  infant,  the  guardian 
for  the  suit  must  be  appointed.  If  the  infant  is  of  the  age  of  four- 
teen years,  the  appointment,  if  made  within  twenty  days  after  the 
return  of  the  summons,  must  be  made  on  the  application  of  the 
infant  himself;  but  if  the  infant  is  under  fourteen,  or  does  not 
apply  within  the  twenty  days,  the  appointment  may  be  made  on 
the  application  of  a  friend  of  the  infant,  or  of  the  plaintiff  in  the 
action.  The  entry  of  the  appointment  should  show  on  whose  ap- 
plication it  is  made,  as  well  as  the  person  appointed  guardian.  No 
judgment  can  be  taken  against  an  infant  until  a  guardian  is  ap- 
pointed ;  and  if  taken,  it  will  be  set  aside  on  motion.  Kellogg  v. 
Klock,  2  Code,  28.  It  would  seem  from  section  100,  that  a  guard- 
ian, when  appointed,  must  answer,  and  that  a  judgment  taken 
without  such  answer,  would  be  irregular  and  erroneous.  2  S.  & 
C.  981. 

The  guardian  may  be  appointed  by  the  court,  by  a  judge  of  the 
court,  or  by  a  probate  judge  of  the  county  in  which  the  action  is 
pending.  The  appointment,  if  made  out  of  court,  must  be  made  in 
writing,  and  signed  by  the  judge  making  it;  and  be  also  filed  with 
the  clerk  of  the  court.  Orders  made  out  of  court  are  required  to 
be  entered  in  the  journal  of  the  court.     Sec.  510  ;  2  S.  &  C.  1099. 


92  APPEARANCE. 


This  is  a  motion,  of  course,  and  does  not  require  any  notice  to 
be  given  to  the  adverse  party,  under  section  505.     2  S.  &  C.  1098. 

Insane  Persons. 
There  seems  to  be  nothing  in  the  code  as  to  them.  The  law  reg- 
ulating that  subject,  1  S.  &  C.  848,  authorizes  the  guardian  to  bring 
suit,  but  does  not  provide  for  a  suit  being  prosecuted  against  an 
insane  person.  The  guardian  of  a  minor,  as  such,  has  no  authority 
to  defend  a  suit ;  the  guardian  to  defend  must  be  appointed  by  the 
court ;  hence  the  reference  to  the  laws  relating  to  guardians  of 
minors,  etc.,  section  34,  1  S.  &  C.  848,  does  not  seem  to  remove  the 
difficulty.  In  Harrison  v.  Eowan,  4  Wash.  C.  C.  202,  it  is  held  that 
a  lunatic,  whose  interests  are  sought  to  be  affected  by  a  decree, 
must  be  made  a  party  to  the  suit,  and,  if  a  defendant,  must  answer 
by  a  committee  appointed  for  that  purpose  by  the  court ;  and,  if  he 
has  no  committee,  the  court  will  appoint  a  guardian  to  defend  the 
suit  and  answer  for  the  lunatic.  In  L'Armaureux  v.  Crosby,  2 
Paige  C.  422,  the  court  says  that  the  proper  course  is  to  apply  to 
the  court  of  chancery  by  petition,  and  that  a  proceeding  by  bill  is 
improper,  except  under  direction  of  the  court.  This  authority  is 
derived  from  the  general  powers  of  a  court  of  chancery  in  England ; 
the  chancellor  having  charge  of  minors  and  insane  persons.  It  is 
doubtful  whether,  in  Ohio,  we  have  any  means  by  which  a  lunatic, 
or  person  non  compos  mentis,  can  be  sued.  His  guardian  is  author- 
ized to  sue  ;  and  hence  the  person  having  a  claim  must  present  it 
to  the  guardian,  and,  if  disputed,  allow  it  to  be  passed  upon  by  the 
probate  court  on  a  settlement  of  the  guardian's  accounts.  This 
would  seem  to  be  all  that  can  be  done  in  Ohio,  in  regard  to  a  suit 
wherein  an  insane  person  is  interested  as  a  defendant. 

When  the  above  was  written,  the  difficulty  existed  which  is  there 
pointed  out.     But  this  defect  has  been  supplied  by  section  7  of  the 
act  relating  to  the  organization  of  courts.  1  S.  &  C.  384.  That  section 
provides  that  whenever  in  any  suit  in  court  now  pending  or  which 
may  hereafter  be  instituted,  it  shall  manifestly  appear  to  the  court 
that  any  person,  who  is  a  party  to  such  suit  is  an  idiot,  lunatic,  or 
insane  person,  but  for  whom  no  guardian  appointed  by  legal  au- 
thority is  acting,  or  in  case  there  be  a  guardian  of  such  person 
who  has  an  adverse  interest,  it  shall  be  the  duty  of  the  court  before 
proceeding  further  in  the  suit  to  appoint  forthwith  some  suitable 
person  to  appear  as  trustee  in  such  suit  for  such  idiot,  lunatic,  or 
insane  person,  and  in  his  name  and  on  his  behalf  to  prosecute  or 
defend  such  suit,  as  the  case  may  be ;  and  in  the  case,  the  idiocy, 


APPEARANCE.  93 


lunacy,  or  insanity  of  such  person  be  not  manifest  to  the  court,  it 
shall  be  the  duty  of  the  court  before  proceeding  further  in  the  suit, 
on  the  suggestion  of  the  idiocy,  lunacy,  or  insanity  of  such  party 
upon  probable  cause,  to  direct  an  issue  upon  the  fact,  arid  forthwith 
to  impanel  a  jury  to  try  and  determine  the  question;  and  in  case 
of  a  verdict  finding  such  party  idiot,  lunatic,  or  insane,  the  court 
shall  forthwith  appoint  the  trustee  to  appear  in  such  suit  for  such 
party  as  aforesaid. 

FORMS,   WHEN   INSANITY   MANIFEST. 

And  now  it  manifestly  appearing  to  the  court  here  that  the  said 
defendant  in  this  action  is  an  idiot  (lunatic  or  insane,  as  the 
case  may  be),  and  that  there  is  no  guardian  appointed  by  legal 
authority  acting   for  him   said   defendant  (or  that  his  guardian 
A  B,  has  an  interest  adverse  to  him),  it  is  therefore  ordered  that 
be,  and  he  is  hereby  appointed  trustee  for  said  so 

being  an  idiot  (lunatic  or  insane)  and  ordered  to  appear  as  trustee 
for  said  in  this  suit,  and  for  him  and  in  his  behalf  to  defend 

this  action  (or  prosecute  the  same,  as  such  idiot,  etc.,  is  plaintiff  or 
defendant),  and  thereupon  came  the  said  and  accepted  said 

trust  and  took  upon  himself  the  defense  (or  prosecution)  of  this 
action. 

FORM    WHERE    THE   INSANITY,    ETC.,    IS   NOT    MANIFEST. 

And  whereas  it  has  here  in  court  been  suggested  to  the  court 
here,  that  the  said  ,  the  defendant  (or  plaintiff)  in  the  action 

is  an  idiot  (or  a  lunatic,  or  insane),  and  such  idiocy  (or  lunacy,  or 
insanity)  not  being  manifest  to  the  court  here,  and  it  however 
being  made  to  appear  to  the  court  here  that  there  is  probable  cause 
for  believing  said  is  an  idiot  (lunatic  or  insane),  it  is  ordered 

that  a  jury  be  forthwith  impaneled  to  try  and  determine  the  ques- 
tion whether  said  is  an  idiot  (lunatic  or  insane),  and  thereupon 
came  a  jury,  to  wit  (hers  state  the  names  of  the  jury),  who  being 
duly  elected,  impaneled,  and  sworn  the  truth  to  speak  on  said 
question,  after  hearing  the  evidence,  do  upon  their  oaths  say  that 
said  is  an  idiot,  or  that  said  is  not  an  idiot  (or  a  lunatic 
or  insane;,  and  thereupon  the  court  appoint  A  B  as  trustee  for 
said  so  found  to  be  an  idiot  (or  lunatic  or  insane),  for  him  and 
in  his  behalf'  to  defend  (or  prosecute)  this  action,  and  thereupon 
came  the  said  and  accepted  said  trust,  and  took  upon  himself 
in  the  name  and  behalf  of  the  defense  (or  prosecution)  of 
this  action. 


94  APPEARANCE. 


Forms. 

PERMISSION.  FOR   WIPE    TO    DEPEND    SEPARATE   FROM    HER  HUSBAND. 

A  B,  plaintiff,  ~\ 

vs.  >  Petition. 

C  D  and  wife,  defendants,  j 

On  motion  of  the  said  ,  wife  of  the  said  ,  and  it  ap- 

pearing to  the  court  that  the  interests  of  the  said  (wife)  re- 

quire a  separate  defense  by  her,  it  is  therefore  ordered  that  the  said 
(wife)  is  hereby  empowered,  authorized,  and  permitted  to 
defend  the  said  suit,  separate  and  apart  from  her  said  husband,  and 
by  her  next  friend. 

And  thereupon  came  the  said  ,  by  E  F,  her  next  friend, 

and  filed  her  separate  answer  in  the  petition  of  the  said  plaintiff. 

OR   IN    THIS   FORM. 

On  motion  of  the  said  ,  wife  of  the  said  ,  and  it  ap- 

pearing to  the  court  that  the  said  has  neglected  and  does 

neglect  to   defend  this  suit,  it  is  therefore  ordered  that  the  said 
(wife)  be  permitted  to  defend  said  action  alone  and  separate 
from  her  said  husband,  and  by  her  next  friend. 

APPOINTMENT    OF    GUARDIAN    TO   THE    SUIT. 

A  B,  plaintiff,    ") 

v.  >  Petition. 

C  D,  defendant.  ) 

On  motion  of  the  said  ,  and  it  appearing  to  the  court  that 

the  said  defendant  is  of  the  age  of  fourteen  years,  it  is  ordered 
that  be  and  he  is  hereby  appointed  guardian  ,for  the  suit  for 

the  said  ,  and  thereupon  came  the  said  ,  guardian  for 

the  suit,  and  accepted  said  appointment. 

On  motion  of  ,  a  friend  of  the  said  ,  a  minor,  and  it 

appearing  to  the  court  that  said  is  under  the  age  of  fourteen 

years,  it  is  ordered  that  be  and  the  same  is  hereby  appointed 

guardian  for  the  suit  for  the  said  ;  and  thereupon  came  the 

said  and  accepted  the  said  appointment. 

On  motion  of  the  said  (plaintiff  or  a  friend),  and  it  ap- 

pearing to  the  court  that  said  is  of  the  age  of  fourteen  years, 

and  has  neglected  to  apply  in  person  for  the  appointment  of  a 
guardian  for  the  suit  for  more  than  twenty  days  after  the  return 


APPEARANCE.  95 


of  the  summons,  it  is,  therefore,  ordered  that  be  and  the 

same  is  hereby,  etc.,  as  in  last  form. 


A  B,  plaintiff,   "J  County,  ss. 


C  D,  defendant,  j  Court  Common  Pleas- 

The  said  ,  a  minor,  of  the  age  of  fourteen  years,  having  this 

day  applied  to  me,  ,  a  judge  of  the  said  Court  of  Common  Pleas 

(or  probate  judge  of  said  county  of  ),  and  it  appearing  to  me 

that  the  summons  in  this  case  has  been  served,  and  that  said 
is  of  the  age  of  fourteen  years,  it  is,  therefore,  by  me,  the  said 
,  judge,  as  aforesaid,  ordered  that  be  and  the  same  is 

hereby  appointed  guardian  for  the  suit  for  the  said 

Given  under  my  hand  this         day  of  ,  a.  d.  18     . 

S  N,  Judge. 

ANOTHER   FORM. 

E  F,  a  friend  of  the  said  ,  a  minor,  of  the  age  of  fourteen 

years  (or  the  plaintiff  in  said  cause),  having  this  day  applied  to 
me,  E  S,  a  judge  of  said  Court  of  Common  Pleas  (or  probate  judge 
of  said  county  of  ),  and  it  being  made  to  appear  to  me  that 

the  said  is  of  the  age  of  fourteen  years,  and  that  he  has  neg- 

lected for  more  than  twenty  days  after  the  service  of  the  summons 
in  this  case,  to  apply  for  the  appointment  of  a  guardian  for  this 
suit  for  himself,  the  said  ,  it  is,  therefore,  by  me,  the  said 

,  judge,  as  aforesaid,  ordered  that  be  and  the  same  is 

hereby  appointed  guardian  for  the  suit  for  the  said 

Given  under  my  hand  this         day  of  ,  a.  d.  18     . 

S  N,  Judge. 

FOR   MINORS   UNDER    FOURTEEN. 

E  F,  a  friend  of  the  said  ,  a  minor,  under  the  age  of  four- 

teen years  (or  the  plaintiff  in  the  said  suit,  as  the  case  may  be),  hav- 
ing this  day  applied  to  me,  ,  a  judge  of  said  Court  of  Common 
Pleas  (or  probate  judge  of  said  county  of  ),  and  it  being 
made  to  appear  to  me  that  the  said  is  a  minor  under  the  age 
of  fourteen  years,  and  that  the  summons  in  this  case  has  been  duly 
served,  it  is,  therefore,  by  me,  the  said  ,  judge,  as  aforesaid, 
ordered  that  be  and  the  same  is  hereby  appointed  guardian 
for  the  suit  for  the  said 

Given  under  my  hand  this        day  of  ,  a.  d.  18     . 

S  N,  Judge. 


96  JOINDER   OF    ACTIONS. 


CHAPTER  VIII. 


JOINDEK   OF  ACTIONS. 

The  code  contains  the  following  provisions  as  to  the  right  to 
join  several  actions  in  one  suit ; 

Sec  80.  The  plaintiff  may  unite  several  causes  of  action  in  the 
same  petition,  whether  they  be  such  as  have  heretofore  been  de- 
nominated legal  or  equitable,  or  both,  when  they  are  included  in 
either  one  of  the  following  classes  : 

1.  The  same  transaction;  or  transactions  connected  with  the 
same  subject  of  action. 

2.  Contracts  express  or  implied. 

3.  Injuries  with  'or  without  force,  to  person  and  property,  or 
either. 

4.  Injuries  to  character. 

5.  Claims  to  recover  the  possession  of  personal  property,  with  or 
without  damages  for  the  withholding  thereof. 

6.  Claims  to  recover  real  property,  with  or  without  damages  for 
the  withholding  thereof,  and  the  rents  and  profits  of  the  same. 

7.  Claims  against  a  trustee,  by  virtue  of  a  contract  or  by  oper- 
ation of  law. 

Sec.  81.  The  causes  of  action  so  united  must  affect  all  the  parties 
to  the  action,  and  not  require  different  places  of  trial.  Ladd  v. 
James,  10  Ohio  St.  437  ;  2  W.  Law  Monthly,  591,  Hammond  v. 
Deaver. 


1.  The  first  general  remark  on  these  sections  is  that  actions  for 
torts  and  on  contracts  can  not  be  joined.  Subdivision  2  provides 
for  cases  arising  out  of  contract,  and  3  and  4  for  cases  arising  out 
of  torts.  And  so  it  has  been  held  in  New  York.  In  Furniss  v. 
Brown,  8  Pr.  59,  Edmunds,  J.,  held  that  an  action  to  recover  spe- 
cific personal  property,  could  not  be  joined  with  a  count  claiming 
damages  for  a  breach  of  a  contract  of  sale  of  the  same  property. 
The  same  doctrine  is  maintained  in  Burdick  v.  McAmbly,  9  Pr.  117. 
The  distinction  between  actions  ex  contractu  and  actions  ex  delicto 
is  still  important,  as  a  test  of  what  can  or  can  not  be  now  joined. 

The  Court  of  Appeals  of  New  York  have  decided  that  an  action 


JOINDER   OP   ACTIONS.  97 

on  a  contract  and  on  a  tort  can  not  be  joined,  and  that  the  dis- 
tinction between  the  two  classes  of  causes  of  action  is  recognized 
in  the  code.  Lott,  J.,  in  Austin  v.  Eowdon,  44  N.  Y.  63,  70,  says : 
"  The  controlling  distinction  between  a  declaration  on  contract 
and  in  trover  was  that  in  the  former  the  cause  and  right  of  action 
was  founded  on  a  contract  which  was  counted  on  in  the  declaration 
and  the  failure  of  the  defendant  to  perform  it ;  whereas  in  the  lat- 
ter, the  basis  of  the  action  was  the  finding  of  the  property  and  the 
wrongful  conversion  thereof.  Although  the  form  of  all  actions  at 
law  and  suits,  and  all  the  forms  of  pleading  existing  before  the  code, 
were  thereby  abolished,  and  it  is  sufficient  to  state  in  a  plain  and 
concise  manner  the  facts  constituting  the  cause  of  action,  yet  the 
substantive  distinction  between  actions  on  contract  and  those 
founded  in  tort,  still  exist." 

The  second  section  of  the  code  which  defines  an  action  to  be  an 
ordinary  proceeding  in  a  court  of  justice,  by  which  a  party  prose- 
cutes another  party  for  the  enforcement  or  protection  of  a  right, 
the  redress  or  prevention  of  a  icrong,  or  the  punishment  of  a  public 
offense,  clearly  recognizes  the  distinction  between  actions  ex  con- 
tractu and  ex  delicto. 

Swan,  J.,  in  the  case  of  Sturgis  v.  Burton,  8  Ohio  St.  215,  218, 
uses  the  following  language  on  this  subject :  "By  the  provisions  of 
the  code  the  plaintiff  may  unite  in  one  action  all  causes  of  action 
arising  from  <  the  same  transaction  or  transactions  connected  with 
the  same  subject  of  action ;'  and  this  includes  causes  of  action  legal 
and  equitable,  ex  contractu  and  ex  delicto.  But  if  the  causes  of 
action  do  not  arise  from  the  same  transaction,  or  transactions  con- 
nected with  the  same  subject  of  action,  then  causes  of  action  ex 
contractu  can  not  in  general  be  united  with  causes  of  action  ex 
delicto." 

Since  the  first  edition  of  this  work  was  published,  I  have  had 
this  section  of  the  code  under  consideration,  and  am  led  to  doubt 
the  propriety  of  the  rule  laid  down  in  New  York,  that  contract  and 
tort  can  not  in  any  case  be  joined.  I  have  been  led  to  think  they 
can  be,  when  the  two  causes  of  action  grow  out  of  the  same  trans- 
action. The  question  has  been  presented  in  various  forms.  One 
was  ;in  action  brought  on  a  sale  of  a  horse  ;  the  first  count  alleging 
a  warranty  that  the  horse  was  sound;  the  second  for  a  fraud  in 
representing  the  horse  to  have  not  been  over  nine  years  of  age. 
Hence,  the  two  causes  of  action  grow  out  of  the  same  transaction, 
and  could  have  been  joined  before  the  code  by  framing  the  first 
vol.  i — 7 


98  JOINDER   OF   ACTIONS. 


count  as  a  fraudulent  warranty ;  but  this  can  not  now  be  done, 
since  the  truth  is  in  all  cases  to  be  averred  in  pleading.  It  was 
held  that  contract  and  tort  might  be  joined  in  such  a  case. 

The  same  question  came  up  again  in  Lasher  v.  Waterman,  in" 
Meigs  county.  The  first  count  was  for  use  and  occupation  of  cer- 
tain real  estate ;  the  second  count  averred  that  while  defendant 
occupied  the  land  stated  in  the  first  count,  he  committed  certain 
waste  thereon  ;  and  on  demurrer,  the  propriety  of  this  joinder  was 
raised.  The  court  on  consideration  held  that  these  two  causes  of 
action  were  connected  with  the  same  subject  of  action  and  grew 
out  of  the  same  transaction.  The  defendant  held  the  land  under 
a  lease,  and  while  so  holding  it,  violated  the  duty  laid  upon  him 
by  law,  by  committing  the  waste  complained  of  in  this  second 
count.  It  seems  hardly  reasonable  to  require  two  actions  to  settle 
the  question  of  waste,  when  an  action  is  pending  for  the  rent.  The 
two  causes  of  action  clearly  grow  out  of  the  same  transaction,  to 
wit,  the  contract  of  lease  by  which  the  defendant  occupied  the 
premises.  If  this  view  of  this  section  is  correct,  then  any  and  all 
causes  of  action  may  be  united  where  they  grow  out  of  the  same 
transaction,  or  transactions  growing  out  of  the  subject  of  action  ; 
unless  such  is  the  case,  contract  and  tort  can  not  be  joined.  The 
only  doubt  which  can  be  suggested  as  to  the  correctness  of  this 
view  is,  whether  waste,  committed  by  one  on  premises  held  by 
lease,  can  be  said  to  grow  out  of  the  same  transaction  as  that  which 
compels  him  to  pay  the  rent.  Where  there  is  an  actual  lease  with 
covenants  against  waste,  there  can  be  no  difficulty ;  as  in  such  a 
case  a  count  can  be  framed  in  contract;  but  ought  there  to  be  any 
difference  where  the  party  is  in  under  such  circumstances  as  com- 
pels the  plaintiff  to  sue  for  use  and  occupation  f  It  was  thought 
not,  and  it  was  therefore  held  that  the  two  counts  could  be  joined. 

2.  The  next  general  remark  relates  to  the  joinder  of  causes  of 
action  heretofore  denominated  legal  and  equitable.  Our  code  is 
somewhat  obscure  ;  but  the  history  of  this  clause  in  the  New  York 
code  will  aid  us  in  understanding  our  own.  Does  subdivision  1 
control  all  the  others?  Does  this  subdivision  fix  the  limits  within 
which  legal  and  equitable  causes  of  action  may  be  joined  ?  Un- 
less such  a  construction  be  given  to  this  section,  all  causes  of  ac- 
tion growing  out  of  contract  may  be  joined  under  the  second 
subdivision.  Hence  a  count  on  a  note  or  bill  of  exchange,  or  a 
contract  to  pay  money  might  be  joined  to  a  count  for  the  specific 
performance  of  a  contract,  the  foreclosure  of  a  mortgage,  or  the 
enforcement  of  a  lien  for  purchase  money.     It  is  true  that  the 


JOINDER   OF    ACTIONS.  99 


concluding  clause  of  the  section  says  that  the  causes  of  action  so 
united  must  all  belong  to  one  of  these  classes ;  but,  if  we  are 
to  give  a  literal  construction  to  these  words,  it  would  follow  that 
no  two  causes  could  be  joined  unless  they  grew  out  of  the  same 
transaction.  Hence  counts  upon  several  notes  or  bills  of  exchange 
could  not  be  joined  unless  they  all  arose  out  of  the  same  contract 
or  transaction.  Nor  could  two  separate  trespasses  be  joined.  This 
would  be  to  narrow  tbe  right  to  join  separate  causes  of  action, 
instead  of  enlarging  it,  and  compel  separate  suits  in  innumerable 
cases  where  heretofore  a  single  suit  was  allowed.  No  longer  could 
a  petition  be  sustained  to  foreclose  two  separate  mortgages,  or  for 
the  specific  execution  of  separate  contracts. 

The  first  New  York  code  did  not  contain  the  words  as  to  joining 
legal  and  equitable  causes  of  action,  nor  the  subdivision  1.  The 
courts  held  that  a  claim  on  a  demand  for  money  had  and  received 
could  not  be  joined  with  a  claim  which,  under  the  former  practice, 
would  have  been  the  foundation  of  a  bill  in  chancery,  to  compel 
the  delivery  up  of  certain  notes.  Cahoon  v.  Pres.  of  Bank  of 
Utica,  3  Code,  110;  S.  C,  7  Pr.  134;  Aleger  v.  Scoville,  6  Pr.  131. 
These  cases  maintain  the  doctrine,  even  where  the  two  different 
grounds  for  relief  grew  out  of  the  same  transaction.  The  code  was 
amended  in  1852,  and  these  words  were  then  inserted  with  the 
manifest  intent  of  authorizing  a  joinder  of  legal  and  equitable 
causes  of  action,  where  they  arose  from  the  same  transaction.  The 
reason  of  this  is  clear.  By  the  law,  as  formerly  administered, 
under  the  double  aspect  of  law  and  equity,  a  party  was  often  en- 
titled to  bring  either  a  suit  at  law,  or  to  file  a  bill  in  chancery.  He 
had  two  remedies;  but  he  must  elect  at  once  which  he  would 
choose  to  enforce,  and  his  election  was  made  by  the  bringing  of 
his  suit ;  if  he  sued  at  law,  he  elected  to  insist  on  his  legal  rights ; 
if  he  filed  a  bill  in  equity,  he  elected  to  insist  upon  his  rights  in 
equity.  As  all  distinctions  between  suits  at  law  and  in  equity 
were  abolished,  it  seemed  necessary  that  a  party  should  have  the 
right  to  count  in  the  same  action  upon  the  double  aspect  of  his 
cause ;  otherwise,  if  he  mistook  his  remedy  or  rights  in  the  first 
instance,  he  might  be  barred  the  bringing  of  another  suit;  if  not, 
lie  would  be  put  to  double  costs  for  no  benefit  to  any  one.  Hence 
the  amendment  provided  for  the  joining  of  causes  of  action, 
whether  such  as  had  heretofore  been  denominated  legal  or  equita- 
ble, or  both,  when  they  grew  out  of  the  same  transaction,  or  trans- 
actions connected  with  the  same  subject  of  action. 


100  JOINDER   OF   ACTIONS. 


The  Supreme  Court  of  Ohio,  in  the   case  of  The  Glohe  Ins. 
Co.  v.  Boyle,  21    Ohio   St.  119,    held   that   an   action   might   be 
brought  to  reform  a  contract  and  to  recover  on  said  contract  so  re- 
formed ;  and  if,  when  reformed,  the  cause  of  action  would  have  been 
a  common-law  action,  then  the  court  will  first  decide  upon  the 
equitable  case  to  reform  the  contract,  and  then  submit  the  case  to 
the  jury  on  the  contract  so  reformed.     This  opinion  seems  to  be 
based  upon  the  idea  that  the  party  on  the  contract  as  reformed  is 
entitled  to  a  trial  by  jury.     This  is  a  singular  mixture  of  causes  of 
action,  where  one  is  to  be  tried  by  the  court  and  the  other  by  a 
jury.  '  The  code  (section  263)  provides  for  jury  trials.     "Issues  of 
facts,  arising  in  actions  for  the  recovery  of  money,  or  of  specific 
real  or  personal  property,  shall  be  tried  by  a  jury."     This  clause 
has  been  construed  to  be  as  broad  as  the  constitution  securing  the 
right  of  trial  by  jury,  and  to  include  all  common-law  actions,  as 
they  existed  before  the  code.     "  The  right  of  trial  by  jury  shall  re- 
main inviolate."     Article  1,  section  5,  of  the  present  constitution. 
This  clause  simply  guarantees  the  right  of  trial  by  jury,  as  it  had 
heretofore  existed.     If,  then,  in  a  case  to  reform  a  contract,  a  court 
of  equity  could  and  did  both  reform  the  contract  and  afford  the  re- 
lief the  party  was  entitled  to  under  such  reformed  contract,  then 
the  parties  in  such  a  case  were  never  entitled  to  a  trial  by  jury  as 
of  right,   and  are  not  now  entitled  to  such   a   trial.     Moreover, 
the  code  does  not  provide  for  a  trial  in  such  a  case.     The  words,  "  for 
the  recovery  of  money,  or  for  the  recovery  of  money  only,"  have 
been  decided  to  mean  the  same  thing  in  the  section  relating  to  the 
indorsement  to  be  made  on  the  summons  of  the  amount  demanded 
to  the  recovery  of  costs ;  and  the  action  of  replevin  and  for  the  re- 
covery of  the  possession  to  real  estate  are  common-law  actions,  and 
involve  the  right  to  a  trial  by  jury.     But  a  petition  to  reform  a 
contract  is  a  suit  in  equity ;  and  a  court  of  equity  could  alone  re- 
form a  mistake  in  the  reduction  to  writing  of  a  written  contract, 
and  the  rule  of  equity  was,  that  where  a  court  of  equity  once 
obtained  jurisdiction  for  a  particular  purpose,  as  for  discovery,  to 
reform  a  contract,  to  vacate  a  deed,  having  granted  the  specific 
equitable  relief,  it  proceeded  to  grant  full  relief,  and  declined  to 
compel  the  party  to  incur  the  costs  of  a  second  suit  in  a  court  of 
law.  "  Courts  of  equity,"  says  Story  (1  Story's  Eq.  418),  "  will  (as  we 
have  seen)  on  this  very  ground  interfere  to  restrain  proceedings  at 
law,  until  the  matter  has  been  properly  investigated;  and  if  it 
finally  appears  that  the  deed  has  been  improperly  obtained,  or  that 
it  is  contrary  to  the  intention  of  the  parties  in  their  contract,  they 


JOINDER   OF    ACTIONS.  101 


will,  in  the  first  case,  compel  a  delivery  up  and  cancellation  of  the 
deed,  or  order  it  to  be  deposited  with  an  officer  of  the  court;  and 
further  direct  a  reconveyance  of  the  property,  if  any  has  been  so 
conveyed,  that  a  reconveyance  may  be  necessary.  In  the  second 
case,  they  will  either  rectify  the  deed  according  to  the  intention  of 
the  parties,  or  will  restrain  the  use  of  it  in  the  points,  in  which  it 
has  been  framed  contrary  to,  or  has  gone  beyond  the  intention  of 

the  original  contract If  they  are  money  securities,  on 

which  money  has  been  paid,  the  money  is  decreed  to  be  paid  back. 
It  is  well  settled  that  if  the  jurisdiction  of  a  court  of  equity  attaches, 
it  will  go  on  to  do  complete  justice,  though  in  its  progress,  it  may 
decree  on  a  matter,  which  was  cognizable  at  law.  Cathcart  v. 
Eobinson,  5  Peters,  263.  So  where,  on  a  bill  by  a  vendor  to  en- 
force the  specific  performance  of  a  contract  for  the  sale  of  land,  it 
appeared,  that  by  the  contract  the  vendee  had  the  right  to  relieve 
himself  from  the  purchase  by  paying  a  stipulated  sum,  it  was  held 
that  the  right  of  the  vendor  to  come  into  equity  for  a  specific  per- 
formance being  clear,  the  court,  in  refusing  to  decree  such  specific 
performance,  might  decree  the  payment  by  the  vendee  of  such 
stipulated  sum  to  the  vendor,  although  the  vendor  might  have  re- 
covered the  same  at  law.  lb.  If  certain  facts,  essential  to  the 
merits  of  a  claim  purely  legal,  be  exclusively  within  the  knowledge 
of  the  party  against  whom  the  claim  is  asserted,  he  may  be  required 
in  a  court  of  chancery  to  disclose  those  facts ;  and  the  court,  being 
thus  rightly  in  the  possession  of  the  case,  will  proceed  to  determine 
the  whole  matter  in  controversy.  Eussell  v.  Clark,  7  Cranch,  69. 
So  again,  where  the  court  has  properly  obtained  jurisdiction  of  a 
cause,  for  the  discovery  of  facts,  in  aid  of  a  defense  at  law,  which 
could  not  be  proved  in  such  suit,  the  cause  may  be  retained,  and  the 
appropriate  relief  granted.  Miller  v.  McCan,  7  Paige  C.  457.  So 
where  the  court  restrains  proceedings  at  law  for  the  recovery  of 
money,  if  relief  is  refused,  at  the  hearing,  payment  of  the  money 
will  be  decreed.  Spcers'  Ch.  159,  City  Council  v.  Page.  Where 
equity  has  obtained,  or  can  rightfully  exercise  jurisdiction  for  one 
purpose,  it  will  not  turn  a  party  out  to  pursue  his  remedy  at  law,  on 
a  feature  of  the  case  which  would  be  cognizable  at  law,  if  it  can  do 
justice  between  the  parties.  McRaven  v.  Forbes,  6  How.  (Miss.)  569. 
In  the  case  of  Miami  Exp.  Co.  v.  United  States  Bank  et  al.,  Wright, 
iM!i-257.  the  eourl  say  that  "  if  there  be  any  one  aspect  of  the  case 
made,  which  u-iws  the  court  jurisdiction,  it  will  hold  (he  case  in  order 
to  do  complete  justice."  So  in  the  case  of  Hunt  k  Phillips  v.  Free- 
man, 1   Ohio,  490,  the  court  held  that  a  court  of  chancery  will 


102  JOINDER   OP    ACTIONS. 


correct  mistakes  in  written  agreements,  where  they  originate  in 
fraud  or  error,  and  execute  it  according  to  the  intention  of  the 
parties.  So  relief  will  be  afforded  in  equity  against  the  payment 
of  notes  given  for  a  void  patent  right,  and  the  money  paid  on  such 
notes  may  be  recovered  back  in  equity.  Darst  v.  Brockway,  11 
Ohio,  462.  In  this  case,  the  court  say  that  "  having  acquired 
jurisdiction  for  a  lawful  purpose,  a  court  of  equity  will  retain  the 
cause  and  do  full  justice  between  the  parties;"  so  the  court  decreed 
the  repayment  of  money  which  had  been  paid  on  some  of  the  notes 
to  indorse  before  due  without  notice.  So  a  bill  in  chancery  may 
be  sustained  on  a  lost  deed  to  recover  damages  for  the  breach  of  a 
covenant  of  warranty.  Michael  v.  Mills,  17  Ohio,  601.  Jurisdic- 
tion properly  acquired  by  a  court  of  equity,  it  will  settle  matters 
between  the  parties,  which  do  not  afford  original  ground  of  jurisdic- 
tion.    Brook  v.  Stolley,  3  McLean,  523. 

These  authorities  show  conclusively  that  when  a  court  of  equity 
obtained  jurisdiction  to  reform  a  contract,  to  set  up  a  lost  deed,  to 
vacate  a  deed,  etc.,  it  will  retain  the  case,  and  do  complete  and  full 
justice  to  the  parties,  and  not  turn  the  parties  round  to  a  court  of 
law  to  complete  the  legal  effect  of  the  decree  in  chancery ;  but  it 
will  go  on  and  decree  the  rights  of  the  parties  under  the  reformed 
contract,  to  assess  the  damages  recoverable  on  the  covenants  in  a 
lost  deed,  and  restore  the  party  to  the  possession  of  lands  obtained 
under  a  fraudulent  deed.  Such  having  been  the  law  before  the 
code,  is  now  the  law,  and  right  of  trial  by  jury  exists  in  these 
cases. 

But  care  must  be  taken  to  discriminate  these  cases  from  those 
where  equitable  and  legal  causes  of  action  are  joined  as  growing 
out  of  the  same  transaction.  In  these  cases  the  equitable  case 
must  be  tried  by  the  court,  and  the  legal  case  by  a  jury.  Different 
issues  must  be  made  up  in  each  case  according  to  its  character ; 
indeed,  each  count  should  be  treated  as  a  separate  action,  the  one 
in  equity  and  the  other  at  law.  The  case  of  Davis  v.  Morris,  36 
N.  Y.  569,  is  one  of  this  character.  It  holds  that,  under  the  code 
of  procedure,  the  complaint  may  embrace  both  legal  and  equitable 
causes  of  action  in  such  cases.  The  legal  causes  may  be  tried  by 
a  jury,  and  the  equitable  causes  by  the  court.  Vide  also  Penn. 
Coal  Co.  v.  Del.  &  Hud.  Canal  Co.,  1  Keys,  72. 

But  there  is  a  distinction  to  be  observed:  Are  there  two  dis- 
tinct causes  of  action,  or  do  the  facts  allow  of  relief  in  equity  or 
admit  of  an  action  at  law  ;  and  in  either  of  which  cases  complete 
relief  can  be  obtained  ?     The  case  of  Penn.  Coal  Co.  v.  Del.  &  Hud. 


JOINDER   OF   ACTIONS.  103 


Canal  Co.,  1  Keys,  72,  is  one  of  these.     Here  are  no  two  causes  of 
action,  but  a  transaction  which  affords  ground  for  one  of  two  modes 
of  relief.     In  such  a  case  the  plaintiff  must  elect  in  his  petition  the 
kind  of  relief  he  demands,  and  he  can  have  no  other.     Where, 
therefore,  the  complaint  and  prayer  in  such  a  case  are  such  as  to 
embrace  both  equitable  and  legal  remedies,  the  defendant  may 
move  the  court  to  compel  the  party  to  elect  on  which  part  of  the 
case  he  will  proceed.     So,  where  a  party  brings  an  equitable  action, 
he  must  maintain  the  same  on  equitable  grounds,  or  fail,  even 
though  he  prove  a  good  cause  of  action  at  law  on  the  trial.     Mann 
v.  Fairchild,  2  Keys,  106.     In  Heywood  v.  City  of  Buffalo,  14  N. 
Y.  534-540,  Johnston,  J.,  says:    "It  is  claimed  that  the  Superior 
Court,  being  possessed  of  both  law  and  equity  powers,  had  juris- 
diction of  the  subject  matter,  and,  having  jurisdiction,  should  have 
rendered  judgment  appropriate  to  the  injury  complained  of  and 
admitted  by  the  demurrer.     But  its  equitable  powers  only  were 
invoked,  and  if  the  plaintiff  failed  to  make  out  a  case  of  equitable 
cognizance  in  his  complaint,  he  was  entitled  to  no  judgment.     Be- 
cause the  same  court  had  power  to  set  aside  the  assessment,  had 
all  the  proceedings  been  removed  into  it  by  the  appropriate  writ 
from  the  inferior  tribunal,  it  does  not  follow  that  a  party  may 
have  the  same  relief  in  any  other  form  of  proceeding.      .      .      . 
"Whatever  distinctions  may  have  been  abolished  by  the  code  of 
procedure,  this  certainly  has  not.     Indeed,  it  is  still  the  law  that  a 
party  who  brings  an  equitable  action  must  maintain  it  on  some 
equitable  ground ;  and  if  his  cause  of  action  is  of  a  legal,  and  not 
an  equitable  nature,  he  must  bring  a  legal  action  or  pursue  a  legal 
remedy.     "Where  a  matter  is  clearly  or  prima  facie  one  of  legal 
cognizance,  a  party  must,  in  order  to  maintain  an  equitable  action 
upon  it,  «tate  clearly  facts  sufficient  to  entitle  him  to  equitable  re- 
lief, and  show  that  a  perfect  remedy  can  not  be  obtained  at  law." 
The  reason  of  this  rule  is  apparent.     Parties  are  to  recover  or  de- 
fend according  to  the  allegation  of  the  pleadings;  hence,  to  try 
an  action  asking  for  equitable  relief,  and  render  a  judgment  as 
upon  an  action  at  law,  is  to  depart  wholly  from  the  case  made,  and 
decide  another  and  a  different  case,  which  would  be  flatly  against 
the  fundamental  principle  of  all  pleading  and  of  all   judicial  pro- 
ceedings     To  do  so  would  be  to  avoid  a  positive  provision  of  tin- 
code,  that  in  an  action  for  money,  the  amount  demanded  must  be 
indorsed   on   the   summons.     To   allow  an    equitable   ease    to  be 
amended  into  a  Legal  one,  would  be,  by  amendment,  to  state  an  ac- 
tion when  the  service  had,  would  be  no  service.     It  would  seem, 


104  JOINDER   OF    ACTIONS. 


therefore,  that  where  the  action  is  launched  as  an  action  in  equity, 
and  in  which  no  indorsement  on  the  summons  is  required  of  the 
amount  demanded,  such  an  action  can  not  be  amended  into  an  ac- 
tion at  law,  requiring  a  different  service. 

Legal  and  equitable  causes  of  action  may  then  be  joined : 
I. — 1.    When  they  both  arise  out  of  the  same  transaction. 

2.   When  they  arise  out  of  transactions  connected  with  the  same 
subject  of  action. 

1.  The  first  class  depends  upon  tbe  origin  of  tbe  two  claims. 
The  facts  out  of  which  they  arise,  must  be  the  same,  and  must, 
under  the  former  practice,  have  given  to  the  party  a  right  to  sue 
either  at  law,  or  in  equity.  In  these  cases,  the  plaintiff  may,  in 
one  petition,  present  the  double  aspect  of  his  case,  and  recover  ac- 
cording to  his  rights  as  ascertained  upon  the  trial.  We  may  in- 
stance the  case  where  a  party  has  paid  or  received  money  on  a 
contract  for  the  purchase  of  real  estate,  and  one  of  the  parties  fails 
to  comply.  The  vendor  can  tender  back  the  money  paid,  and  re- 
scind; or  tender  a  deed,  and  insist  on  the  payment  of  the  purchase 
money.  The  vendee,  if  the  vendor  refuses  to  convey,  has  a  right 
to  rescind  and  recover  back  the  money  paid,  or  to  tender  the  pur- 
chase money  in  full  and  claim  a  conveyance.  In  such  cases,  how- 
ever, as  the  remedies  are  inconsistent,  the  plaintiff  must  demand 
his  relief  in  the  alternative;  and,  if  entitled  to  both,  he  must,  at 
the  hearing,  elect  which  kind  of  judgment  or  relief  he  will  de- 
mand. Where  the  remedies  are  consistent,  he  may  demand  both  ; 
as  where  he  asks  for  the  execution  of  a  written  contract  for  the 
conveyance  of  real  estate,  and  the  recovery  of  possession,  in  addi- 
tion. So  also,  on  a  petition  on  a  note  and  mortgage,  the  plaintiff 
would  be  entitled  to  a  judgment  on  the  note,  and  an  order  to 
sell  the  real  estate  covered  by  the  mortgage.  So  in  Spier  et  al.  v. 
Eobinson  et  al.,  9  Pr.  325,  it  was  held  that  a  claim  for  specific 
performance  of  a  contract  to  convey  real  estate,  and  for  the 
payment  of  a  reasonable  sum  for  the  use  and  possession  thereof,  is 
not  the  setting  up  of  two  distinct  causes  of  action,  which  can  not 
be  legally  united.  The  plaintiff  in  this  case  was  the  vendee,  and 
his  claim  for  use  and  occupation  was  for  the  occupation  and  use  of 
the  land  sold  between  the  time  when  possession  should  have  been 
given  and  of  the  decree.  The  whole  matter  was  then  the  subject 
of  an  ordinary  suit  in  chancery,  as  there  was  at  law  no  right  to  re- 
cover for  this  occupation.  So  a  suit  may  be  maintained  to  reform 
a  contract,  and  enforce  the  collection  of  a  sum  of  money  due  on 


JOINDER   OF    ACTIONS.  105 


such  contract,  when  so  reformed.  Gooding  v.  McAlister,  9  Pr.  123. 
It  was  a  matter  of  equity  of  jurisdiction,  and  contained,  in  fact, 
but  one  cause  of  action. 

2.  The  second  class  depends  upon  the  subject  matter  of  the  suit, 
where  the  transactions  are  connected  with  the  same  subject  of  action. 
Here  are  two  things  upon  which  the  right  to  join  depends  :  First. 
Upon  the  one  subject  of  action  ;  Secondly.  Upon  transactions  con- 
nected with  it.  We  may  remark,  first,  that  tort  and  contract  can 
not  be  joined,  though  they  are  connected  with  the  same  subject  of 
action.  Actions  to  be  joined  must  belong  to  the  same  class.  Enos 
v.  Thomas,  4  Pr.  48;  Furniss  v.  Brown,  8  Pr.  59.  So,  too,  they 
must  be  consistent  with  each  other.  Smith  v.  Hallock,  3  Pr.  73. 
Hence  it  was  held  that  the  plaintiff  could  not  join  a  claim  to  re- 
cover land,  as  the  owner  thereof,  and  damages  for  obstructing  him 
in  the  use  of  it,  to  a  greater  extent  than  is  authorized  by  a  lease 
held  by  the  defendant.  The  first  claim,  says  Strong,  J.,  8  Pr.  74, 
is  founded  on  the  supposition  that  the  defendant  has  no  right 
whatever  to  the  enjoyment  of  the  land ;  and  the  second,  upon  an 
admission  that  he  has  a  limited  right  to  occupy  it.  There  is  a  dis- 
crepancy between  the  grounds  of  the  two  claims,  which  is  contrary 
to  the  rules  of  pleading ;  and  which,  in  my  opinion,  is  not  sanc- 
tioned by  the  provisions  on  the  subject,  in  the  last  addition  to  the 
code  of  procedure.  The  one  hundred  and  sixty-seventh  section,  as 
amended  by  the  act  of  April  16,  1852,  provides  (subd.  1)  that  the 
plaintiff  may  unite,  in  the  same  complaint,  several  causes  of  action, 
"  where  they  all  arise  out  of  the  same  transaction,  or  transactions 
connected  with  the  same  subject  of  action."  This  has  reference  to 
such  causes  of  action  as  are  consistent  with  each  other ;  not  surely 
to  those  which  are  contradictory.  The  latter  can  not  spring  from 
the  same  transaction,  nor  can  all  of  them  be  connected  with  the 
same  subject  matter,  for  the  palpable  reason  that  they  can  not  co- 
exist. Besides,  the  fifth  subdivision  retains  the  provision  in  the 
code  previously  enacted,  authorizing  the  junction  of  claims  to  re- 
cover real  property,  with  or  without  damages  for  withholding 
thereof,  and  the  rents  and  profits  of  the  same.  That  would  indi- 
cate that  the  union,  in  such  cases,  should  not  go  further. 

In  Hulce  v.  Thompson,  9  Pr.  113,  Crippcn,  J.,  uses  the  follow- 
ing language,  in  reibrunce  to  this  part  of  the  code:  "The  allega- 
tions in  thf  complaint  make  the  house  and  door-yard  one  subject 
of  action.  The  plaintiff  seeks  to  recover  possession  of  this  portion 
of  the  property  involved  in  the  action;  it  is  a  distinct  claim  or 
cause  of  action  ;  it  has  no  connection  with  the  claim  of  damages 


106  JOINDER   OF    ACTIONS. 


for  the  trespasses  alleged  to  have  been  committed  by  the  defendant 
on  other  portions  of  the  farm.  It  is  true  that  both  claims  or  causes 
of  action  set  up  in  the  complaint,  arise  from  wrongful  acts  of  the 
defendant ;  he  unlawfully  withholds  possession  of  the  house  and 
door-yard ;  he  also  unlawfully  cut  the  grass,  and  destroyed  the 
fences,  and  committed  other  acts  of  trespass  on  the  plaintiff's  farm, 
irrespective  of  the  house  and  yard  in  question.  Yet  the  difficulty 
remains,  that  withholding  the  possession  of  the  house  and  yard, 
and' the  committing  of  the  trespasses,  do  not  proceed  from  the 
same  transactions  ;  neither  are  they  connected  with  the  same  sub- 
ject of  action  within  the  meaning  of  subdivision  1  of  section  167 
of  the  code.  It  is  clear  from  the  case,  as  set  forth  in  the  complaint, 
that  the  claim  in  ejectment  arises  from  the  defendant  refusing  to 
surrender  to  the  plaintiff  the  possession  of  the  house  and  door- 
yard.  This,  then,  as  a  transaction,  has  no  connection  whatever 
with  the  trespasses  of  the  defendant  in  cutting  the  plaintiff's  grass, 
destroying  his  fences,  etc.;  these  are  entirely  distinct  and  uncon- 
nected transactions,  having  no  affinity  or  relation  to  each  other. 
Neither  am  I  able  to  discover,  by  any  fair  course  of  reasoning, 
in  what  way  the  different  claims  set  up  are  connected  with  the  same 
subject  of  action.  It  is  manifest  that  one  subject  of  the  action  is 
the  house  and  door-yard ;  the  other  is  the  trespasses  committed  by 
the  defendant  on  plaintiffs  farm,  in  cutting  the  grass,  burning 
fences,  etc.  It  is  true  that  the  house  and  yard  are  situated  on 
the  same  farm  whereon  the  grass  was  cut  by  the  defendant,  and 
other  trespasses  committed  by  him;  yet  the  farm  is  not  made  the 
subject  of  action  by  the  complaint,  within  the  spirit  and  mean- 
ing of  subdivision  1  of  section  167.  Such  are  the  decisions  in  New 
York  on  this  singular  clause  in  the  code,  from  which  we  can  hardly 
infer  what  will  be  its  final  construction. 

The  suit  must  be  about  the  same  subject  of  action.  This  clause 
may  be  illustrated  by  the  practice  prevailing  in  courts  of  equity. 
The  thing  in  dispute  is  made  the  test ;  and  the  rights  of  all  per- 
sons, which  attach  to  this  subject  or  thing  in  dispute,  may  be  ad- 
justed in  a  single  suit;  as  where  there  are  several  liens  or  mort- 
gages on  the  same  subject  or  matter  in  dispute.  In  this  view,  it 
only  requires  what  the  chancery  law  required — that  all  parties  in 
interest  should  be  before  the  court,  and  all  rights  which  affect  the 
title  to  the  property  should  be  passed  upon  in  a  single  suit.  It 
would  seem  that  all  the  rights  or  causes  of  action  must  cover,  or 
be  connected  with,  the  identical  property,  or  subject;  that,  if 
one  cause  of  action  is  connected  with  only  a  portion  of  the  subject 


JOINDER   OF   ACTIONS.  107 


of  the  suit  that  the  other  relates  to,  they  can  not  be  joined  ;  and 
yet  this  construction  can  not  be  applied  to  equitable  rights  ;  as 
where  there  are  different  liens  on  different  parcels  of  real  estate, 
and  liens  on  the  whole  of  it.  Here  there  must  be  a  joinder  of  all, 
in  order  to  make  a  clear  title  to  the  real  estate  ;  and  the  chapter 
on  parties  requires  that  such  a  joinder  should  be  made. 

In  conclusion,  it  seems  to  us  that  this  subdivision  (1)  must  be 
held  to  limit  the  right  to  join  legal  and  equitable  causes  of  action, 
and  can  not  be  applied  beyond  that.  The  other  subdivisions  must 
be  construed,  as  they  would  have  been,  had  this  clause  never  been 
inserted,  except  so  far  as  the  right  to  unite  legal  and  equitable 
causes  of  actions,  coming  within  the  several  classes  of  cases,  must 
be  limited  and  fixed  by  this  subdivision  (1).  Under  the  other 
clauses,  no  cause  of  a  legal  and  equitable  character  can  be  united, 
unless  they  come  within  the  terms  of  the  first  clause. 

The  remark,  in  the  last  clause,  that  the  cause  of  actions  so 
joined  must  affect  all  the  parties  to  the  action,  can  not  be  construed 
literally  in  cases  of  equitable  rights,  connected  with  real  estate, 
and  sometimes  with  personalty.  Parties  have  often  different  liens 
on  different  parts  of  the  same  property;  and  yet  the  cause  of  ac- 
tion of  one  can  not  affect  all  the  parties,  since  others  may  have  no 
lien  on  the  identical  property  on  which  his  lien  attaches ;  and  yet 
the  liens  may  be  such  that,  in  order  to  make  a  clear  title  to  the 
land  or  property,  it  is  necessary  that  the  rights  of  all  should  be 
adjusted  in  the  same  suit.  In  such  cases,  the  code  must  be  con- 
strued to  require  all  parties  interested  in  the  subject  matter  of  the 
suit  to  be  before  the  court,  before  a  decree  can  be  rendered.  In 
Title  III,  section  40,  which  relates  to  parties,  the  court  is  required 
to  bring  other  parties  in,  when  a  determination  of  the  contro- 
versy can  not  be  had  without  them.  In  section  40,  any  person, 
having  an  interest  in  real  or  personal  property,  may,  on  his  appli- 
cation, be  made  a  party.  We  must  construe  the  code,  not  on 
isolated  titles,  or  sections,  but  by  a  careful  survey  of  the  whole ; 
otherwise,  innumerable  conflicts  will  arise,  and  confusion  become 
absolutely  confounding. 

in  regard  to  the  other  subdivisions,  it  maybe  remarked  that 
the  causes  which  can  be  united  must  all  belong  to  a  single  sub- 
division. The  causes  of  action  which  may  be  united  in  the  same 
action  must  all  belong  to  one  of  the  classes  contained  in  the  above; 
quoted  section  of  the  code.  Sec.  107.  Each  subdivision,  it  is 
fair  to  presume,  was  intended  to  provide  lor  a  class  of  cases  not 
included  in  the  other.     Per  Crippen,  J.,  Ilulce  v.  Thompson,  9  Pr. 


108  JOINDER   OP   ACTIONS. 


113  ;  Burdick  v.  McAmbly,  9  lb.  117.  In  this  case  the  judge  says: 
"  It  is  unnecessary  to  state  the  absurdity  of  uniting  in  one  com- 
plaint, an  action  upon  a  promissory  note,  another  for  the  conver- 
sion of  real  property,  another  for  seduction,  and  another  for  fraud 
in  the  sale  of  personal  chattels.  The  objection  is  obvious  to  every 
member  of  the  legal  profession."  The  same  docti-ine  is  stated  by 
Edmunds,  J.,  in  Furniss  v.  Brown,  8  Pr.  59,  62  ;  7  lb.  134,  Gaboon 
v.  Bank  of  Utica.  It  would  be  impossible  to  try  such  various 
causes  of  action  by  a  jury.  The  number  of  issues  would  intro- 
duce such  confusion,  and  so  distract  the  minds  of  a  jury,  that 
justice  would  become  more  the  sport  of  uncertainty  than  now. 

II.   Contracts,  express  or  implied,  may  be  united. 

This  subdivision  embraces  all  contracts,  from  which  a  legal 
liability  arises.  Can  two  causes  of  action,  however,  arising  out 
of  contract,  always  be  joined  ?  They  may  be  inconsistent  and 
limited  by  subdivision  1.  And  it  is  doubtful  whether  two  causes 
can  be  united,  which  require  different  tribunals  for  their  trial.  The 
code,  section  263  (2  S.  &  C.  1020),  provides  that  "issues  of  fact 
arising  in  actions  for  the  recovery  of  money,  or  of  specific  real 
or  personal  property,  shall  be  tried  by  a  jury,  unless,"  etc.  Section 
264  provides  that  "  all  other  issues  shall  be  tried  by  the  court," 
etc.  Issues  of  law  must  first  be  tried  by  the  court;  but  if  issues 
of  fact,  the  one  to  a  jury,  and  another  to  the  court,  can  be  raised 
in  the  same  action,  which  shall  be  first  tried  ?  These  issues  of 
fact  to  be  tried  by  a  jury  are  issues  in  actions  for  the  recovery  of 
money,  or  specific  real  or  personal  property,  not  issues  on  which 
a  recovery  in  money,  etc.,  can  be  had.  The  action  must  be  for  the 
recovery  of  money,  etc.  It  is  the  action  to  which  reference  is  had, 
not  the  character  of  the  issue.  If  the  action  is  for  the  recovery  of 
money,  etc.,  then  the  issues  in  such  an  action  are  to  be  tried  by  a 
jury.  The  word  action  includes  all  the  causes  of  action  stated  or 
prosecuted  in  it.  Hence  all  these  causes  of  action  must  be  for  the 
recovery  of  money,  etc.,  or  the  action  can  not  be  said  to  be  an  action 
for  the  recoveiy  of  money,  or  specific  real  or  personal  property. 
In  Cahoon  v.  Bank  of  Utica,  7  Pr.  134,  it  was  held  that  causes  of 
action  requiring  different  trials  could  not  be  joined.  This  sub- 
division (2)  is  broad  enough  to  justify  the  joinder  of  causes  re- 
quiring different  trials ;  but  as  no  provision  is  made  for  the  trial 
of  such  mongrel  actions,  it  must  be  held  that  such  a  joinder  can 
not  take  place. 


JOINDER   OP   ACTIONS.  109 


III.  Injuries  with  or  without  Force,  to  Person  and  Property,  or  either. 
The  section  provides  for  the  joinder  of  actions  of  trespass,  as 

heretofore  classed,  whether  to  the  person  or  to  property,  or  to  either, 
and  also  actions  on  the  case  for  nuisances,  or  other  incidental  in- 
juries. It  is  clear,  from  the  other  subdivisions,  that  all  cases  hereto- 
fore known  as  trespass,  and  trespass  on  the  case,  are  provided  for 
under  this  subdivision.  Hence,  what  were  actions  on  the  case  and 
trespass  may  be  joined.  Trespass,  too,  to  real  estate  comes  under 
this  head.  Criminal  conversation  with  plaintiff's  wife  was  held  to 
be  an  injury  to  the  person.  Delamater  v.  Eussell,  2  Code,  146  ;  S. 
C,  4  Pr.  234.  So  also  of  an  action  of  seduction.  Taylor  v.  North, 
3  Code,  9.  Claims,  however,  for  injuries  to  personal  property,  and 
for  its  possession,  are  different  causes  of  action.  Spalding  v. 
Spalding,  1  Code,  64;  S.  C,  3  Pr.  297.  Cases  for  conversion  of 
property  will  also  come  under  this  head,  unless  they  can  be  so  pre- 
sented as  to  come  under  subdivision  5. 

IV.  Injuries  to  Cliaracter. 

Under  this  class  are  included  all  actions  for  verbal  and  written 
slander,  actions  for  slander,  or  libel.  In  Watson  v.  Hazzard,  3 
Code,  218,  it  is  said  that  a  cause  of  action  for  a  malicious  prosecu- 
tion may  be  joined  with  one  for  slander.  This  can  hardly  be  so, 
since  a  malicious  prosecution  is  an  injury  to  the  person,  certainly 
as  much  as  seduction  or  criminal  conversation.  It  can  not  be  said 
to  be  an  injury  to  character,  since  character  is  not  its  object ;  arrest 
and  imprisonment  is  its  object,  and  character  is  only  incidentally 
affected,  if  affected  at  all. 

In  Shore  v.  Smith,  15  Ohio  St.  179,  the  court  held  that  a  cause 
of  action  for  slander,  in  charging  the  plaintiff  with  theft,  might  be 
united  in  the  same  petition  with  a  cause  of  action  for  a  malicious 
prosecution  for  an  alleged  theft,  both  being  for  "  injuries  to  char- 
acter," within  the  meaning  of  clause  3  of  section  80  of  the  code  of 
civil  procedure.  S.  &  C.  967,  968.  A  man's  reputation  may  be 
destroyed  or  injured  as  effectually  by  preferring  malicious  indict- 
ments or  prosecutions  against  him  as  by  spoken  or  written  words. 
3  Black.  Com.  135.  The  above  is  the  whole  report  of  the  case ; 
but  I  could  hardly  suppose  a  doubt  could  be  raised  on  the  subject. 
They  could.  I  believe,  lie  joined  under  the  prior  practice,  because 
both  actions  admit  of  the  same  plea  and  the  same  trial.  The  rule 
laid  down  in  1  Chit.  PI.  229,  is  this :  "  The  result  of  the  authorities 
is  stated  to  bo  that  when  the  same  plea  may  be  pleaded,  and  the 
same  judgment  given  on  all  the  counts  of  the  declaration,  or  whenever 


110  JOINDER   OF   ACTIONS. 


the  counts  are  of  the  same  nature,  and  the  same  judgment  is  to  be 
given  on  them  all,  though  the  pleas  be  different,  as  in  the  case  of 
debt  upon  bond  and  on  simple  contract,  they  may  be  joined."  2 
Saund,  117e,  h,  Comyn's  Dig.,  Action  G.  Perhaps  the  latter, 
that  is,  the  nature  of  the  cause  of  action,  is  the  best  test  or  criterion 
by  which  to  decide  as  to  the  joinder  of  counts.  An  action  of  slan- 
der and  an  action  for  malicious  prosecution  were  both  actions  on 
the  case,  and  hence  could  be  joined.  This  class  of  cases  for  mali- 
cious prosecution  must  have  come  under  the  head  of  injuries  to 
character,  or  injuries,  with  or  without  force,  to  the  person;  and 
until  the  question  was  decided,  there  was  room  for  contention  as  to 
which  class  it  ought  to  belong.  In  the  case  of  Harris  v.  Avery,  5 
Kansas,  146,  it  was  held  that  where  they  related  to  the  same  trans- 
action, a  count  for  false  imprisonment  and  slander  may  be  joined. 
The  facts  in  this  case  were  as  follows :  Harris  met  Avery  in  the 
city  of  Fort  Scott,  and  in  the  presence  of  several  other  persons 
called  Avery  a  thief;  said  he  had  a  stolen  hoi^se ;  took  the  horse 
from  Avery,  and  kept  the  horse  four  or  five  days ;  arrested  Avery, 
and  confined  him  in  county  jail  for  four  or  five  days. 

The  court  say :  "  It  is  probably  true  that  the  two  causes  of  action 
for  false  imprisonment  and  slander  can  not,  under  our  code,  be 
united,  unless  both  arise  out  of  the  same  transaction,  one  being  an 
injury  to  the  character;  but  we  do  not  know  of  any  reason  why 
they  should  not  be  united  when  both  arise  out  of  the  same  trans- 
action." 

The  Kansas  code,  in  this  respect,  is  a  copy  of  ours.  Vide  also 
Brewer  v.  Temple,  15  How.  Pr.  286 ;  Eobinson  v.  Flint,  16  lb.  240. 

V.  Claims  to  recover  the  Possession  of  Personal  Property,  with  or 
without  Damages  for  the  withholding  thereof. 
This  section  is  equivalent  to  the  old  action  of  replevin,  and  will 
lie  where  that  action  would  have  laid.  Title  VIII,  chapter  II, 
section  174,  2  S.  &  C.  996,  clearly  shows  that  such  is  the  meaning 
of  this  subdivision.  That  section  says  that,  in  an  action  to  recover 
the  possession  of  specific  personal  property,  the  plaintiff  may 
claim  the  immediate  delivery,  etc.  A  party  may,  however,  claim 
to  recover  the  specific  property  without  resorting  to  his  replevin ; 
he  may  demand  his  property  or  damages  for  its  loss.  Still,  in  order 
to  maintain  such  a  suit,  he  must  be  entitled  to  the  immediate  pos- 
session. There  is,  possibly,  a  class  of  cases,  once  included  in  the 
action  of  trover,  where  this  form  of  action  may  be  resorted  to  if 
the  petition  is  properly  framed. 


JOINDER   OP   ACTIONS.  Ill 


VI.  Claims  to  recover  Real  Property,  with  or  without  Damages  for  the 
withholding  thereof,  and  the  Rents  and  Profits  of  the  same.    . 

This  class  embraces  the  old  action  of  ejectment,  authorizing, 
however,  an  additional  remedy  in  the  same  action  for  damages, 
which  were  formerly  recovered  in  an  action  of  trespass  for  mesne 
profits.  So,  also,  injuries  to  the  real  estate,  waste,  or  destruction, 
may  be  included  in  a  single  action.  The  mesne  profits — the  rents 
and  profits  during  the  dispossession  of  the  plaintiff's — are  the  only 
rents  and  profits  to  which  it  has  reference.     8  Pr.  520. 

VII.  Claims  against  a  Trustee,  by  virtue  of  a  Contract,  or  by  Opera- 
tion of  Law. 

This  section  authorizes  the  joinder  of  express  and  implied  trusts. 

Effect  of  Non-Joinder. 

A  question  will  arise,  whether,  if  not  demanded  in  a  suit  to  re- 
cover specific,  real,  or  personal  property,  a  second  suit  can  be  pros- 
ecuted to  recover  the  damages  sustained  by  the  withholding  of  the 
property.  It  is  submitted  that  a  failure  to  demand  the  damages,  or 
rents  and  profits,  in  the  action  to  recover  possession,  will  be  a  bar 
to  a  subsequent  suit  to  recover  what  is  a  mere  incident  to  the  first 
suit.  Clearly,  in  the  case  of  replevin,  no  second  suit  could  be  pros- 
ecuted to  recover  damages  for  the  unlawful  detention,  and  it  would 
seem  that  the  same  reasoning  should  now  be  applied  to  a  suit  to  re- 
cover real  estate. 

Again,  if  a  party  has  both  a  legal  and  equitable  claim,  arising 
out  of  the  same  transaction,  can  he  bring  a  suit  on  his  legal  claim, 
and  a  second  on  his  equitable  one?  Must  not  a  party  who  holds  a 
note  and  mortgage,  demand  his  whole  rights  in  one  suit?  Can  he 
obtain  judgment  on  his  note,  and  then  afterward  proceed  on  his 
mortgage  ?  It  would  seem  that  a  party  should  be  compelled  to  set 
forth  his  whole  claim,  growing  out  of  the  same  transaction.  There 
are  other  similar  cases,  in  which,  to  prevent  multiplicity  of  actions, 
a  party  should  be  required  to  set  forth  his  whole  claim  in  a  single 
action. 


112  JURISDICTION    OP   THE   COURTS. 


CHAPTER  IX. 


JURISDICTION  OF   THE   COURTS. 

The  code  does  not  undertake  to  settle  or  fix  the  jurisdiction  of 
the  courts.  It  assumes  that  the  Court  of  Common  Pleas  has  origi- 
nal jurisdiction  both  in  suits  at  common  law  and  in  chancery. 

The  jurisdiction  of  the  courts  is  fixed  by  the  act  of  March  14, 
1853  (1  S.  &  C.  382),  and  the  acts  amendatory  thereto.  Section 
5  of  the  original  act,  amended  April  20, 1854  (1  S.  &  C.  38G,  sec.  33), 
provides  that  the  Court  of  Common  Pleas  shall  have  original  ju- 
risdiction in  all  civil  cases,  where  the  sum  or  matter  in  dispute  ex- 
ceeds the  jurisdiction  of  justices  of  the  peace.  By  section  1  of  the 
act  of  May  1,  1854  (1  S.  &  C.  770),  justices  have  exclusive  original 
jurisdiction  of  any  sum  not  exceeding  one  hundred  dollars,  and 
concurrent  jurisdiction  in  any  sum  over  one  hundred  dollars,  and 
not  exceeding  three  hundred  dollars. 

These  sections  can  not  apply  to  matters  heretofore  the  subject 
of  chancery  jurisdiction.  That  jurisdiction  has  never  been  held 
to  be  conferred  under  such  terms ;  it  has  always  required  express 
legislation  for  that  purpose.  Such  has  been  the  history  of  our 
former  legislation,  as  may  be  seen  by  reference  to  our  former  prac- 
tice, underacts  regulating  the  jurisdiction  and  practice  in  chancery. 
Unless  tbis  construction  is  given  to  these  acts,  then  justices  of  the 
peace  possess  chancery  jurisdiction,  where  the  amount  in  dispute 
docs  not  exceed  three  hundred  dollars,  and  can  entertain  a  petition 
to  adjust  a  partnership  account,  compel  the  specific  performance 
of  a  contract  to  convey  land,  etc.  In  the  latter  case,  it  is  not  the 
title  to  real  estate  that  comes  in  issue,  but  the  execution  of  a  per- 
sonal contract. 

The  chancery  jurisdiction  must  be  found  in  section  6  of  the  act 
March  14,  1853  (1  S.  &  C.  383,  sec.  23).  This  section  provides  that 
all  processes  and  remedies,  authorized  by  the  laws  of  this  State, 
when  the  present  Constitution  took  effect,  not  hereinbefore  pro- 
vided for,  may  be  had  and  resorted  to,  in  the  courts  of  the  proper 
jurisdiction  under  the  present  Constitution;  and  all  laws  regulat- 
ing the  practice  of,  and  imposing  duties  on,  or  granting  powers 
to   the    Supreme    Court,    or  any  judge   thereof,   and   the   Courts 


JURISDICTION    OP   THE    COURTS.  113 


of  Common  Pleas,  or  any  judge  thereof,  respectively,  under  the 
former  Constitution,  in  regard  to  matters  not  hereinbefore  pro- 
vided for,  except  as  to  matters  of  probate  jurisdiction,  in  force 
when  the  present  Constitution  took  effect,  shall  govern  the 
practice  of,  and  impose  like  duties  upon,  the  District  Courts 
and  Courts  of  Common  Pleas,  and  the  judges  thereof,  respectively 
created  by  the  present  Constitution,  so  far  as  such  processes,  reme- 
dies, and  laws  shall  be  applicable  to  said  courts,  respectively,  and 
to  the  judges  thereof  and  not  inconsistent  with  the  act  entitled 
"  an  act  to  establish  a  code  of  civil  procedure,"  nor  with  the  laws 
passed  since  the  present  Constitution  took  effect,  and  which  are 
still  in  force.  The  language  of  the  section  is  somewhat  obscure, 
and  the  whole  extent  of  its  meaning  it  may  be  difficult  to  define. 
But  on  this  point  it  is  clear  ;  the  code  gives  no  jurisdiction  ;  and 
acts  in  force  when  this  Constitution  was  adopted,  did  give  Courts 
of  Common  Pleas  jurisdiction,  in  all  cases  properly  cognizable  by 
a  court  of  chancery,  in  which  plain,  adequate,  and  complete  remedy 
can  not  be  had  at  law.  There  is  nothing  in  the  code  inconsistent 
with  this ;  and  hence  it  must  be  in  force,  for  the  purpose  of  giving 
jurisdiction ;  otherwise,  there  is  no  jurisdiction  vested  in  our 
courts  to  administer  the  law  of  a  court  of  chancery.  It  can  not 
be  given  under  the  words  "  in  all  civil  cases,"  without  giving  the 
same  jurisdiction  to  justices  of  the  peace,  where  the  sum  does  not 
exceed  three  hundred  dollars. 

It  is,  then,  an  admitted  fact  that  our  Courts  of  Common  Pleas 
have  jurisdiction  of  all  cases,  whether  they  were  formerly  consid- 
ered matters  of  common  law  or  equity  jurisdiction.  All  rights 
heretofore  recognized,  whether  by  the  common  law,  or  by  the  law  as 
administered  in  a  court  of  chancery,  can  still  be  enforced  in  the 
courts  of  this  State.  The  whole  change  the  code  has  made  is  to 
call  the  proceedings  in  both  cases  a  civil  action,  and  the  document 
setting  forth  the  facts  of  each  class  of  cases  a  petition.  Law  and 
equity  are  still  as  distinct  as  ever,  and  must  bo  administered  and 
enforced  according  to  the  distinctive  character  of  the  respective 
codes  of  law.  A  proceeding  to  compel  the  specific  performance  of 
a  contract,  or  to  set  aside  a  contract  for  fraud,  must  be,  in  its  na- 
ture, unlike  ;i  proceeding  to  enforce  the  payment  of  a  note  or  bill 
of  exchange,  or  a  claim  for  trespass  on  real  estate.  A  change  of 
names  can  never  change  the  nature  of  the  things  named. 

To  know,  then,  what  can  be  done  in  a  court  of  justice,  wo  must 
find  what  are  the  rights  of  individuals  ;  and  wo  can  learn  those 
VOL.  i — 8 


114  PLEADINGS. 


only  by  going  back  to  the  fountains  of  all  rights,  recognizable  in 
a  court  of  justice;  to  the  common  law,  and  to  the  law  as  adminis- 
tered in  a  court  of  equity.  Whatever  facts  would  heretofore  sus- 
tain a  suit  at  law  or  a  bill  in  chancery,  will  now  sustain  a  civil  ac- 
tion, and  may  be  prosecuted  by  petition. 


CHAPTER   X. 


PLEADINGS, 

The  only  pleadings  allowed  are : 

1.  The  petition  of  the  plaintiff. 

2.  The  answer  or  demurrer  by  the  defendant. 

3.  The  demurrer  or  reply  by  the  plaintiff. 

4.  The  demurrer  to  the  reply  by  the  defendant. 

I.  Petition. 

The  petition  must  contain, 

1.  The  name  of  the  court,  and  tbe  county  in  which  the  action  is 
brought,  and  the  names  of  the  parties,  plaintiff  and  defendant,  fol- 
lowed by  the  word  "petition." 

This  whole  clause,  under  the  New  York  code,  is  a  mere  rule  of 
court;  but  under  our  code  these  veriest  matters  of  form  have  been 
declared  to  be  matters  of  substance.  There  was  no  necessity  for 
this  provision.  Under  our  law,  a  case  must  be  tried  in  the  county 
and  court  where  the  suit  is  brought.  Hence  all  questions  of  court 
and  venue  are  settled  independent  of  any  statement  in  the  plead- 
ings. The  commencement  of  the  suit  in  court  settles  both  the  court 
and  the  county  where  it  must  be  tried.  Hence  the  English  doc- 
trine of  venue  never  had  any  existence  in  Ohio ;  the  venue  here, 
was  fixed  by  the  bringing  of  the  suit ;  while  in  England,  suit  being 
brought  in  a  court  having  jurisdiction  over  the  whole  of  England, 
an  averment  of  venue  was  material,  to  show  in  what  county  the 
case  occurred ;  because  in  that  county,  the  law  said,  the  case  must 
be  tried,  if  tried  by  a  jury.  Hence,  in  its  origin,  venue  in  England 
was  a  matter  of  substance,  and  not  of  form,  while  in  Ohio  we  never 
had  any  such  law,  out  of  which  grew  the  English  doctrine  of  venue 


PLEADINGS.  115 


In  England,  the  place  of  trial  was  fixed  by  the  averment  of  the 
venue ;  in  Ohio,  it  is  fixed  by  the  bringing  of  the  suit. 

The  code  has,  however,  enacted  that  these  trifles  are  now  matters 
of  positive  law,  and  hence  they  must  be  complied  with. 

2.  The  petition  must  contain  a  statement  of  the  facts  constituting 
the  cause  of  action,  in  ordinary  and  concise  language,  and  without 
repetition. 

Before  proceeding  to  discuss  the  effect  of  the  operative  portion 
of  this  clause,  we  will  get  rid  of  what  has  no  legal  effect  whatever. 
The  words  following  the  word  "  action  "  are  of  this  character.  The 
facts  are  to  be  stated,  and,  if  stated,  then  they  must  be  stated  in 
appropriate  language,  and  without  unnecessary  prolixity.  When 
pleadings  were  unnecessarily  prolix,  courts  have  always  exercised 
the  power  of  striking  out  unnecessary  matter ;  since  to  insert  it  was 
an  abuse  of  the  privileges  of  the  court — a  mean  of  merely  increas- 
ing costs. 

"  In  ordinary  and  concise  language."  "What  these  words  mean, 
it  is  somewhat  difficult  to  say.  If  they  mean  that  the  facts  shall 
be  stated  in  appropriate  language,  then  they  are  useless;  because 
facts  must  always  have  been  so  stated.  The  science  of  law,  like  all 
other  sciences,  has  its  fixed  and  well-defined  nomenclature;  and 
facts,  when  stated  in  this  legal  language,  were  always  well  stated — 
so  stated  that  every  lawyer  knew  the  exact  import  of  the  statement. 
But,  if,  by  ordinary  language,  is  meant  the  language  of  common  life, 
then  the  clause  is  absurd.;  because  the  language  of  ordinary  life  is 
not  conversant  with  such  subjects,  and  hence  has  no  appropriate 
language  in  which  to  embody  such  facts.  Ordinary  men  invaria- 
bly state  the  evidence  by  which  facts  in  legal  contemplation  are  to 
be  proved,  and  not  the  facts  themselves.  These  words  can  have  no 
legal  operation  on  the  balance  of  the  clause ;  by  it  the  facts,  con- 
stituting the  cause  of  action,  are  to  be  stated,  and  nothing  more, 
and  certainly  nothing  less. 

How,  then,  are  these  facts  to  be  stated?  This  question  gives 
origin  to  another.  The  code,  under  this  language,  provides  for 
cases  arising  under  the  law  as  administered  in  a  court  of  law,  and 
in  a  court  of  equity.  Here  are  two  distinct  classes  of  rights,  aris- 
ing under  two  distincl  systems  of  law,  and  two  distinct  systems  of 
relief.  Are  the  facta  in  both  classes  of  cases  to  be  stated  alike?  Or 
axe  they  to  be  severally  stated,  according  to  the  respective  natures 
of  the  two  different  systems  of  law,  and  the  two  different  systems 
of  relief'.'' 

In  New  York,  this  question  has  given  origin  to  infinite  confusion, 


116  PLEADINGS. 


and  to  a  multitude  of  conflicting  decisions.  The  cases  there  are  all 
at  sixes  and  fours,  as  may  be  seen  by  consulting  the  following 
cases :  Knowles  v.  Gee,  3  Code,  31 ;  ^Rochester  City  v.  Suydam,  5 
Pr.  216  ;  Hill  v.  McCarthy,  3  Code,  49  ;  Floyd  v.  Dearborn,  2  Code, 
1 7 ;  Carpenter  v.  "West,  5  Pr.  53 ;  Burget  v.  Bissel,  5  Pr.  192 ;  Le 
Roy  v.  Marshall  et  al.,  8  Pr.  373.  These  cases  recognize  the  exist- 
ence of  a  difference  in  the  manner  of  stating  the  facts  in  a  case  of 
equity  and  in  a  case  at  law.  Other  cases  seem  to  recognize  a  con- 
trary doctrine.  Williams  v.  Hayes,  1  Code,  K  S.  148 ;  Milligan  v. 
Carey,  3  Code,  250  ;  Clark  v.  Harwood  et  al.,  8  Pr.  470.  The  weight 
of  authority  is  in  favor  of  the  existence  of  this  difference  in  the  two 
systems. 

But  there  ought  to  have  been  no  difficulty  about  this  question. 
Every  civil  action  is  now  an  action  on  the  case ;  and  the  pleadings 
must,  therefore,  conform  to  the  nature  of  each  case.  The  plaintiff 
claims  he  has  a  right  of  action  against  the  defendant,  and  in  his 
petition  he  must  state  the  facts  on  which  he  grounds  his  right  of 
action.  How  the  facts  shall  be  stated  will  depend  upon  the  nature 
of  the  facts  themselves,  and  the  kind  of  judgment  he  seeks  to  ob- 
tain. A  case,  therefore,  predicated  upon  the  principles  of  equity 
law  can  not  be  stated  like  a  case  founded  on  a  promissory  note,  a 
bond,  or  a  covenant,  or  for  an  injury  arising  from  torts.  Legal 
and  equitable  proceedings  are  essentially  different  from  each  other 
in  their  origin,  nature,  and  object.  In  a  common-law  action,  the 
plaintiff  presents  an  absolute  right  to  relief,  in  the  most  concise 
and  expressive  language.  He  states  his  title,  and  nothing  more. 
But  in  a  suit  in  equity,  none  of  this  rigid  logic  prevails.  An  equi- 
table claim  maybe  composed  of  numerous  independent  facts,  all  of 
which,  or  only  a  portion,  may  be  required  to  satisfy  the  court.  A 
legal  claim  is  a  single  proposition,  which  must  stand  in  all  its  parts 
or  fall.  The  one  is  a  chain  which  is  worthless  if  a  single  link  fail ; 
the  other  a  rope,  composed  of  numerous  strands,  some  of  which 
may  give  way,  and  yet  enough  remain  to  secure  some  relief.  Vide 
opinions  of  Barculo,  J.,  in  Le  Roy  v.  Marshall,  8  Pr.  373,  and  of 
Selden,  J.,  in  Rochester  City  Bank  v.  Suydam,  5  Pr.  216,  and 
Wooden  v.  Waffle,  6  Pr.  145. 

And  such  has  been  the  practice.  The  two  classes  of  cases,  law 
and  equity,  can  not  be  forced  into  one  form.  Whatever  the  code 
might  have  intended,  this  is  an  impossibility.  What  are  facts  in 
the  one  class  are  not  facts  in  the  other  class.  Hence  the  petition 
in  the  one  class,  say  in  actions  at  law,  can  not  be  made  in  the  state- 
ments of  the  cause  of  action  to  correspond  with  a  petition  in  equity. 


PLEADINGS.  117 


"What  are  facts  in  equity  is  evidence  in  a  common-law  action.  The 
distinction,  therefore,  must  he  kept  up,  and  a  petition  in  the  one 
case  must  substantially  correspond  with  a  common-law  declaration, 
and  in  the  other  the  stating  part  of  a  bill  in  chancery.  The  prac- 
tice is  now  in  conformity  to  this  view  of  the  code,  and  it  is  so  be- 
cause there  was  no  other  alternative.  A  case  founded  on  princi- 
ples of  equity  could  not  be  stated  in  the  form  of  a  declaration  at 
law  ;  the  nature  of  the  case  would  not  admit  of  it.  And  yet  care 
should  be  taken  to  avoid  the  old  prolixity  in  equity  pleading.  In 
the  old  practice  in  chancery  there  were  three  parts  to  a  bill  in 
chancery  :  1.  The  stating  part,  wherein  was  set  forth  the  facts  con- 
stituting the  grounds  for  the  relief  asked ;  2.  The  evidence  as  to 
which  the  pleader  asked  for  discovery ;  and  3.  The  direct  exam- 
ination of  the  defendant  by  interrogatories  in  proof  of  the  case  of 
the  complainant.  It  will  be  seen  that  evidence  was  embodied  in  a 
bill  in  chancery  looking  to  discovery.  But  no  discovery  can  be 
sought  under  the  code  save  to  a  limited  extent  by  the  filing  of 
interrogatories  as  provided  in  certain  cases.  The  examination  of 
the  parties  as  witnesses  is  now  substituted  for  discovery.  It  will 
thus  be  seen  that  the  code  embraces  within  its  definition  of  a  pe- 
tition, only  the  stating  part  of  a  bill  in  chancery.  Hence  it  is  nec- 
essary to  discriminate  between  what  is  a  fact  in  the  meaning  of 
chancery  pleading  and  the  evidence  by  which  that  fact  is  to  be  sup- 
ported. The  facts  of  the  case  founded  on  principles  of  equity  may, 
nay,  must  often  be  more  minute  and  comprehensive  than  in  a  com- 
mon-law declaration  ;  yet  in  both  cases  it  is  not  enough  to  chai'ge 
fraud  in  general  terms,  but  the  circumstances  by  which  the  fraud 
was  consummated  are  to  be  set  forth,  whether  in  common-law 
declaration  or  plea,  as  in  an  old  bill  in  chancery  or  the  answer 
thereto.  General  pleading  in  cases  of  fraud  is  allowed  in  certain 
cases,  as  where  a  third  party  set  up  covin  and  fraud  concocted  be- 
tween two  other  persons  to  injure  him.  In  such  a  case  the  party 
pleading,  being  a  stranger  to  the  covin  and  fraud,  is  not  supposed  to 
know  the  circumstances  of  it,  and  hence  he  may  aver  generally  that 
what  was  done,  was  done  with  the  fraudulent  intent  to  injure  him. 
So  where  the  facts  of  a  case  or  defense  are  peculiarly  within  the 
knowledge  of  the  other  party  and  not  in  the  knowledge  of  the  party 
pleading,  in  such  case  general  pleading  is  in  certain  cases  allow- 
able.  Saunders  v  Stotts,  review  of,  2  West.  Law  Jour.  297.  In 
such  cases,  however,  the  case  must  show  a  transaction  to  which  the 
party  pleading  was  not  a  party  and  is  wholly  ignorant  ol  the  cir- 
cumstances to   be  set  out.     Covin  is  defined  to  be  a  fraud  com- 


118  PLEADINGS. 


mitted  by  other  parties,  to  the  injury  of  the  party  pleading.  Wim- 
bish  and  wife  v.  Taibois,  1  Plowden,  38.  This  case  defines  what 
covin  is,  and  the  reason  why  a  general  plea  in  that  case  is  allow- 
able. Montague,  C.  J. :  "Also,  there  is  another  reason  to  prove  that 
the  cause  of  covin  shall  not  be  shown  ;  for  at  this  time  the  only 
thing  to  be  discussed  is,  whether  or  no  the  woman,  defendant,  was 
party  to  the  covin,  and,  as  I  said,  inasmuch  as  covin  is  a  secret 
thing,  whereof  by  intendment  of  law  a  stranger  can  not  have 
knowledge  ;  for  this  reason  the  law  will  not  force  a  stranger  to  show 
the  cause  thereof."  The  same  judge  in  the  above  case  defines 
covin  :  "For  covin  is  a  secret  agreement  determined  in  the  hearts  of 
two  or  more  men  to  the  prejudice  of  another. "  This  old  case  well 
studied  reveals  the  reason  and  the  application  of  general  pleading. 
So  a  party,  setting  forth  a  title  to  which  he  is  privy,  must  set  it 
forth  specially;  the  exception  admits  of  general  pleading  only  in 
favor  of  strangers,  who,  in  the  one  case,  are  not  privy  to  the  title, 
and  in  the  other  not  parties  to  the  contract,  and  can  not,  therefore, 
in  law  be  presumed  to  have  knowledge  of  them.  Patridge  v. 
Strange  &  Croker,  1  Plowd.  85 ;  Gould's  PL  184,  sec.  32 ;  2  Saund. 
112,  note  1 ;  Tresham's  case,  9  Coke,  110.  So  also  when  the  facts 
or  matters  tend  to  infiniteness  and  multiplicity:'1  This  relaxation  of  the 
original  rule  extends  onty  to  cases,  in  which  the  acts  required  to 
be  done  on  the  part  of  the  defendant,  are  in  some  degree  indefinite, 
or  at  least  not  precisely  ascertained,  either  in  the  obligation  or  in 
any  other  instrument  referred  to  in  it,"  Gould's  PI.  369,  sec.  115. 
Thus,  if  a  sheriff  executes  a  bond  with  a  condition  that  he  will  re- 
turn all  writs  delivered  to  him,  pay  over  all  money  that  may  come 
to  his  hands  as  such  sheriff,  he  may  in  an  action  on  this  obligation 
plead  performance  in  general  terms,  leaving  it  to  the  plaintiff  in  his 
replication  to  show  what  particular  writ  had  not  been  returned,  or 
from  whom  money  had  been  received  and  not  paid  over.  The  same 
rule  applies  to  an  obligation  conditioned  for  the  faithful  performance 
of  all  the  duties  of  any  office,  or  for  the  payment  of  all  moneys  one 
should  receive  from  the  obligee  ;  or  for  the  delivery  on  request  of 
all  the  fat  and  tallow  of  all  beasts  which  the  obligor  should  kill  be- 
fore a  certain  day.  But  such  cases  as  these  do  not  arise  under  the 
present  mode  of  pleading  ;  the  declaration  or  petition  now  sets  out 
the  specific  act  constituting  a  breach  of  the  obligation.  Formerly 
the  declaration  only  averred  generally  that  the  defendant  had  not 
returned  all  writs,  paid  all  money,  or  delivered  all  fat  and  tallow, 
etc.,  and  in  the  reply  the  specific  default  was  set  out.  The  present 
practice  is  to  assign  the  specific  breach  complained  of  in  the  dec 


PLEADINGS.  119 


laration,  and  thus  rendering  a  general  denial  of  the  breach  and 
the  replication  unnecessary.  Vide  further  Gould's  PL  341,  sees 
68,  69 ;  Baley,  J.,  in  Thompson  v.  Kock,  4  M.  &  S.  338 ;  5  Bacon's 
Abr.  407  ;  Ventris,  9  ;  Thoroughgood's  case,  2  Coke,  5.  Where  gen- 
eral pleading  would  be  allowable  at  law,  it  will  be  allowed  in  cases 
founded  on  principles  of  equity,  as  where  the  party  is  not  a  party 
to  the  transactions,  or  can  not  in  law  be  supposed  to  know  them, 
and  yet  in  these  cases  the  pleader,  after  a  general  averment,  might 
under  the  old  practice  set  forth  what  he  had  been  informed  the  de- 
fendant claimed  and  aver  the  same  not  to  be  true ;  probably  now 
such  pleading  would  not  be  allowed,  since  the  old  practice  was 
allowed  as  a  means  of  obtaining  a  discovery  from  the  defendant, 
which  is  now  done  away  with.  In  practice  under  the  code,  evi- 
dence is  too  often  spread  on  the  record  in  an  action  at  law  rather 
than  confining  equity  pleading  within  the  direct  definition  of  a  pe- 
tition contained  in  the  code.  The  only  certain  aid  one  can  have  on 
what  is  fact  and  what  is  not  fact,  but  evidence,  is  to  consult  the  com- 
mon-law forms  where  this  distinction  is  clearly  shown  and  sharply 
defined.  A  declaration  was  defined  to  be  a  statement  of  the  facts  on 
which  the  plaintiff  rested  his  action  or  the  defendant  his  defense. 
These  forms,  therefore,  show  what  was  considered  the  facts  of  a  cause 
of  action  or  of  a  defense.  In  following  these,  one  is  sure  to  be  right, 
and  one  is  equally  sure  of  being  wrong  by  not  following  them ;  be- 
cause when  one  fails  to  follow  them,  he  runs  into  stating  evidence ; 
and  this  is  often  done  because  the  pleader  does  not  know  what  are 
the  facts  which  constitute  his  cause  of  action  or  his  ground  of  de- 
fense ;  and  hence  he  sets  forth  all  his  evidence,  and  asks  the  court  to 
say  whether  that  evidence  will  justify  a  recovery.  But  it  is  not 
always  enough  to  state  the  evidence,  as  the  fact  to  be  proved  by  that 
evidence  must  be  stated  ;  as  in  case  of  fraud,  it  is  not  enough  to 
state  the  evidence  which  the  pleader  claims  to  prove  a  case  of  fraud, 
because  in  that  case  the  fraud  must  be  averred  directly  or  there  is  no 
issue  made  on  that  fact.  Selden,  J.,  in  Goulot  v.  Asseler,  22  N.  Y. 
228,  says:  'Although  the  code  has  abolished  all  distinction  between 
the  mere  forms  of  action,  and  every  action  is  now  in  form  a  special 
action  on  the  case,  yet  actions  vary  in  their  nature  and  there 
are  intrinsic  differences  between  them  which  no  law  can  abolish. 
It  is  impossible  to  make  an  action  for  a  direct  aggression  upon  the 
plaintiff's  rightfl  by  taking  and  disposing  of  his  property,  the  same 
thing,  in  substance  or  in  principle,  as  an  action  to  recover  for  con- 
sequential injury  resulting  from  an  improper  interference  with  the 
property  of  another,  in  which  he  has  a  contingent  or  prospective 


120  PLEADINGS. 


interest.  The  mere  formal  differences  between  such  actions  are 
abolished;  the  substantial  differences  remain  as  before.  The  same 
proof,  therefore,  is  required  in  each  of  these  two  kinds  of  action  as 
befoi-e  the  code,  and  the  same  rule  of  damages  applies.". 

In  the  case  of  The  People  v.  Kyder,  12  N.  Y.  433,  437,  Marvin,  J., 
discusses  these  questions  in  a  clear  and  sensible  way  and  in  con- 
firmation of  the  above  views.  "  The  code,"  he  says,  "  requires  that 
the  complaint  contain  a  plain  and  concise  statement  of  facts  con- 
stituting a  cause  of  action  without  unnecessary  repetition.  Sec. 
142.  This  rule  is  substantially  as  it  existed  prior  to  its  enactment 
in  actions  at  law.  Chitty  says,  in  general,  whatever  circumstances 
are  necessary  to  constitute  the  cause  of  complaint,  or  ground  of 
defense,  must  be  stated  in  the  pleadings,  and  all  beyond  is  surplus- 
age ;  facts  only  are  to  be  stated  and  not  arguments  or  inferences, 
or  matter  of  law,  in  which  respect  the  pleadings  at  law  appear  to 
differ  materially  from  those  in  equity."  1  Chit.  PI.  245.  At  page 
266  he  says:  "It  is  a  most  important  principle  of  the  law  of 
pleading  that  in  alleging  the  fact,  it  is  unnecessary  to  state  such 
circumstances  as  merely  tend  to  prove  the  truth  of  it.  The  dry 
allegation  of  the  fact,  without  detailing  a  variety  of  minute  cir- 
cumstances, which  constitute  the  evidence  of  it,  will  suffice.  The 
object  of  the  pleadings  is  to  arrive  at  a  specific  issue  upon  a  given 
and  material  fact;  and  this  is  attained,  although  the  evidence  of 
such  fact  to  be  laid  before  the  jury  be  not  specifically  developed  in 
the  pleadings.  Firth  v.  Thrush,  8  B.  &  C.  387 ;  Dyett  v.  Pendleton, 
8  Cowen,  728. 

"  I  have  supposed  it  safe,  and  a  compliance  with  the  code,  to  state 
the  facts  constituting  the  cause  of  action  substantially  in  the  same 
manner  as  they  were  stated  in  the  old  system  in  a  special  count. 
By  that  system  the  legal  issuable  facts  were  to  be  stated,  and  the 
evidence  by  which  those  facts  were  to  be  established  was  to  be 
brought  forward  on  the  trial.  This  position  will  not  embrace 
what  were  known  as  the  common  counts.  Facts  from  which  the 
indebtedness  appears  should  be  stated,  so  that  the  defendant  by  his 
answer  may  put  them  in  issue  or  avoid  them.  Under  the  pres- 
ent system,  it  is  no  longer  necessary  to  state  the  conclusions  of  law 
from  the  facts  previously  stated.  Under  the  old  system,  the  facts 
constituting  the  cause  of  action  were  stated,  and  then  in  an  action 
of  assumpsit  followed  the  conclusions  of  law,  by  means  whereof  the 
defendant  became  liable,  etc.,  and  then  followed  the  undertaking 
and  promise  upon  which  issue  was  joined.  The  consideration, 
when  necessary,  should  always  appear  in  the  statement  of  facts 


PLEADINGS.  121 


constituting  the  cause  of  action.  It  has  been  supposed  that  a 
wider  latitude  should  be  allowed  in  equity  pleading,  and  that  evi-* 
dence  may,  to  some  extent,  be  incorporated  in  the  statement.  The 
rule  of  the  code  is  broad  enough  for  all  cases,  and  it  permits  a 
statement  of  facts  only  as  contradistinguished  from  the  evidence 
which  is  to  establish  those  facts.  But  in  an  equity  case  the  facts 
may  be  more  numerous,  more  complicated,  more  involved;  and 
the  pleader  may  state  all  the  facts  in  a  legal  and  concise  form 
which  constitute  the  cause  of  action  and  entitle  him  to  relief. 
The  rule  touching  the  statement  of  facts  constituting  the  cause  of 
action  is  the  same  in  all  cases,  and  the  rules  by  which  the  sufficiency 
of  the  pleadings  are  to  be  determined  are  prescribed  by  the  code. 

"  Under  the  old  system,  the  omission  to  state  the  time  when  the 
facts  happened  could  only  be  reached  by  a  special  demurrer.  Is  it 
clear  that  the  omission  now,  to  state  when  material  facts  happened, 
is  a  cause  of  demurrer  ?  The  complaint  is  to  contain  a  statement 
of  facts  constituting  a  cause  of  action.  It  was  formerly  necessary 
to  state  the  time  when  every  material  and  traversable  fact  hap- 
pened, but  generally  it  was  not  necessary  to  prove  the  time  as 
alleged,  unless  it  constituted  a  material  part  of  the  contract,  or  had 
been  stated  as  descriptive,  etc.  1  Chit.  PL  257.  In  contemplation 
of  the  code,  is  the  time  generally,  when  a  fact  happened,  a  fact? 
If  the  time  when  a  fact  happened  is  material  to  constitute  the  cause 
of  action,  it  should  undoubtedly  be  stated.  The  fact  without  the 
time  would  be  insufficient  to  constitute  the  cause  of  action ;  but  if 
the  time  is  immaterial,  I  do  not  think  a  demurrer  will  lie  for  omit- 
ting to  state  it.  Suppose  the  plaintiff  alleges  that  the  defendant 
assaulted  and  beat  him,  without  specifying  any  time,  could  the  de- 
fendant demur  on  the  ground  that  the  complaint  did  not  state  facts 
constituting  a  cause  of  action  ?  He  may  have  another  remedy,  but 
I  do  not  think  he  can  demur.  Suppose  the  plaintiff  alleges  he 
gave  notice  to  the  indorser  of  the  dishonor  of  the  note,  but  omitted 
to  state  when  such  notice  was  given,  here  the  time  is  material. 
The  fact  stated  will  not  constitute  or  aid  in  constituting  a  cause  of 
action,  unless  it  occurred  at  a  certain  time  ;  disconnected  from  the 
time,  it  would  be  entirely  immaterial  ;  still  it  would  be  a  notice. 
.  .  .  It  is  provided  in  the  code  that  when  the  allegations  are  so 
indefinite  or  uncertain  that  the  precise  nature  of  the  charge  or  de- 
fense is  not  apparent,  the  court  may  require  the  pleading  to  be 
made  more  definite  and  certain.  The  remedy  is  here  given  for  in- 
definite and  uncurtain  allegations  in  the  pleading." 

This  question  of  time  in  pleading  under  the  code  may  be  a  por- 


122  PLEADINGS. 


tion  of  the  fact,  which,  if  omitted,  might  leave  the  averment  of  the 
fact  indefinite,  and  therefore  should  ordinarily  he  inserted.  It  is 
necessary  to  state  nearly  or  about  the  time  the  fact  happened,  in 
order  to  know  which  fact  of  the  kind  the  pleader  referred  to.  But 
specific  time  is  not  in  all  cases  necessary  ;  when  once  the  main  fact 
is  stated,  subsequent  facts  may  be  averred  afterward  to  have  taken 
place.  Chitty  treats  the  averment  of  time  as  relating  to  certainty. 
He  says  (1  Ch.  PI.  286)  :  "  We  have  already  considered  the  different 
degrees  of  certainty  required  in  pleading,  and  we  have  seen  that 
the  certainty  necessary  in  a  declaration  is  to  a  certain  intent  in 
general,  which  should  pervade  the  whole  declaration,  and  is  par- 
ticularly required  in  setting  forth  the  parties,  time,  place,  and  other 
circumstances  necessary  to  maintain  the  action."  And  time  is 
clearly  a  part  of  a  fact  necessary  to  make  the  particular  fact  defi- 
nite and  certain ;  hence  when  omitted,  the  omission  is  to  be  cor- 
rected by  motion  to  make  more  definite,  and  not  by  demurrer. 

The  question,  then,  is  presented  in  a  double  form,  and  we  will 
so  consider  it : 

1.  As  to  cases  depending  on  one's  legal  rights. 

2.  As  to  those  depending  on  one's  equitable  rights. 
18  N.  Y.  76  ;  17  lb.  354 ;  22  lb.  228. 

And  first,  as  to  the  petition  in  cases  arising  out  of  legal  rights. 
In  these  cases,  the  facts  constituting  the  right  of  action  are  to  be 
stated.  Evidence  is  not  to  be  stated,  but  only  facts.  The  distinc- 
tion between  facts  and  the  evidence  of  facts,  is  well  defined  in  all 
works  on  common-law  pleading.  Hence,  if  we  are  to  ascertain 
what  facts  must  necessarily  be  stated,  to  show  a  right  to  recover, 
we  must  go  to  the  works  on  pleading,  and  to  the  law  on  which 
such  works  are  founded.  The  declaration  contains  a  statement  of 
those  facts  on  which  the  plaintiff  founds  his  right  of  recovery,  and 
must,  of  course,  allege  all  that  is  essential  to  his  right  of  action- 
Gould  PI.  172,  sec.  7.  This  language  is  identical  with  that  of  the 
code ;  and  a  statute,  containing  language  having  a  clear,  definite 
legal  meaning,  must  be  construed  according  to  that  meaning.  Ex 
parte  Hall,  1  Pick.  261 ;  Merchants'  Bank  v.  Cook,  4  Pick.  405 ; 
Snell  v.  Bridgewater  Man.  Co.,  24  Pick.  296.  Such,  too,  is  the  pre- 
vailing opinion  in  New  York.  Facts  must  be  still  set  forth  accord- 
ing to  their  legal  effect  and  operation,  and  not  the  mere  evidence 
of  those  facts,  nor  arguments,  nor  inferences,  nor  matter  of  law 
only.  Nor  should  pleadings  be  hypothetical.  Hand,  J.,  Pattison 
v.  Taylor,  1  Code,  K  S.  175;  Buddington  v.  Davis,  6  Pr,  402; 
Williams  v.  Hayes,  5  Pr.  473 ;  Howard  v.  Tiffany,  3  Sand.  S.  C. 


PLEADINGS.  123 


695.  In  Stone  v.  De  Paya,  4  Sand.  S.  C.  681,  Oakley,  C.  J.,  and 
Sandford,  Duer,  and  Mason,  JJ.,  held  that  the  rule  of  pleading  in 
actions  for  a  legal  remedy  is  the  same  as  formerly  in  this — that 
facts,  and  not  the  evidence  of  facts,  must  be  pleaded.  The  facts, 
then,  must  be  stated  substantially,  as  they  were  formerly  in  a  dec- 
laration. Howard  v.  Tiffany,  supra;  Buddington  v.  Davis,  6  Pi\ 
402 ;  Wooden  v.  Waffle,  6  Pr.  145  ;  Dows  v.  Hotchkiss,  New  York 
Code,  1852,  p.  144,  note ;  Eoot  v.  Foster,  9  Pr.  37.  In  this  case, 
Welles,  J.,  says:  "  I  think  the  complaint  in  this  case  conforms,  in 
principle,  with  the  common-law  rules  of  pleading,  which,  in  most 
cases,  are  the  best  criteria  by  which  to  judge  of  pleadings  under 
the  code."  One  thing  is,  however,  very  clear;  if  the  pleader  em- 
bodies in  his  petition  the  substance  of  a  common-law  declaration, 
he  is  sure  to  have  a  good  petition ;  if  he  adopts  any  other  form 
he  will  never  be  certain  that  he  has  a  good  petition,  until  he  has 
the  decision  of  a  court  of  final  resort  upon  its  sufficiency. 

Every  cause  of  action  must  now  be  specially  stated.  If  the  cause 
of  action  is  founded  on  a  note,  bill,  bond,  etc.,  the  petition  must 
count  on  such  note,  bond,  or  bill.  There  are  no  longer  any  com- 
mon counts,  save  in  cases  coming  literally  within  the  letter  of  such 
counts.  In  the  case  of  an  action  against  the  makers  and  indorsers 
of  a  note,  or  the  drawers,  indorsers,  and  acceptors  of  a  bill,  the 
petition  must  state  facts  enough  against  the  maker  to  show  his 
liability  to  pay,  and  enough  against  the  drawers  and  indorsers  to 
show  their  liability  to  pay;  not  only  the  making  of  a  note,  but  a 
demand  and  notice  according  to  its  terms.  Spellman  v.  Weider, 
5  Pr.  5. 

It  has  been  a  question  in  New  York,  whether  the  common 
counts  could  now  be  used.  Eno  v.  Woodworth,  4  Comst.  249; 
Blanchard  v.  Strait,  8  Pr.  83.  But  it  seems  there  can  be  no  valid 
objection  to  these  counts,  in  cases  coming  under  their  very  terms. 
In  such  cases,  as  of  goods  sold,  money  had  and  received,  money 
paid  by  one  for  another,  and  on  an  account  stated,  the  common 
counts  are  a  statement  of  the  facts  of  the  case,  and  any  more  de- 
tailed statement  must  necessarily  run  into  the  evidence  by  which 
the  facts  are  to  be  proved.  This  form  of  pleading  must  be  allowed, 
or  the  petition  must  go  on  and  state  each  particular  item  of  a  long 
account  of  goods  sold,  etc.  This  would  be  an  outrage  on  common 
sense,  and  render  pleadings  in  such  cases  interminable. 

This  question  has,  however,  been  settled  by  the  New  York  Court 
of  Appeals,  in  the  case  of  Allen  &  Carpenters.  Patterson,  3  Selden, 
476.     The  common  indebitatus  count,  in  the  old  action  of  debt,  was 


124  PLEADINGS. 


there  held  good.     The  eourt  say :  "  The  code  requires  that  a  com- 
plaint shall  contain  a  plain  and  concise  statement  of  the  facts  con- 
stituting the  cause  of  action."     Every  fact  which  the  plaintiff  must 
prove  to  enable  him  to  maintain  his  suit,  must  be  distinctly  averred 
or  stated.     The  rule  of  pleading  in  an  action  for  a  legal  remedy  is 
the  same  as  formerly  in  this,  that  facts,  and  not  the  evidence  of  facts, 
must  be  pleaded.     1  Chitty  PL  215  ;  Kead  v.  Brookman,  3  Term, 
159  ;  Eno  y.Woodworth,  4  Comst.  249.     It  (the  complaint)  contains 
every  statement  of  fact  necessary  to  constitute  a  good  indebitatus 
count  in  debt,  according  to  the  mode  of  pleading  before  the  code.     2 
Chitty  PL  142  ;  Emery  v.  Fell,  2  Term,  28 ;  1  Chitty  PL  345.     The 
same  view  of  the  code  has  been  taken  by  Hand,  J.,  in  Stewart  v. 
Travis  et  al.,  10  Pr.  148,  before  the  case  of  Allen  v.  Patterson  had 
been  reported.     "  My  own  impressions,"  he  says,  "have  been  that 
the  common  counts,  perhaps  with  some  variations,  are  still  good. 
A  direct  allegation  of  the  cause  of  indebtedness,  as  the  loan  of 
money,  the  sale  of  goods,  or  performance  of  work  and  labor,  etc., 
may  be  preferable  to  the  former  recital  of  indebtedness ;  but  cer- 
tainly, it  must  be  enough  for  the  plaintiff  to  state  facts  sufficient  to 
create  a  legal  obligation  upon  the  part  of  the  defendant,  and  such 
violation  of  that  obligation  as  creates  a  cause  of  action  ;  and  I  think 
this  statement  may  be  according  to  the  legal  effect  of  those  facts. 
I  do  not  see  how  such  pleading  can  be  demurrable,  and  the  objec- 
tion of  variance  would  not  prevail,  unless  we  mean  to  give  an 
illiberal  construction  to  the  code.     With  few  exceptions,  there  is 
nothing  in  this  statute  that  compels  us  to  invent  new  modes  of  ex- 
pressing the  same  legal  proposition.     If  the  pleader  in  a  case,  not 
of  equitable  jurisdiction  (for  that  distinction  is  not,  nor  can  it  be, 
abolished  by  the  legislature),  must  now  state  all  the  evidence,  and 
give  a  minute  and  voluminous  history,  and  all  the  details,  of  the 
rise  and  progress  of  a  cause  of  action  or  defense  ;  much  of  it  may  be 
pleasant  as  gossip,  but  such  pleading  must  necessarily  be  a  slow  and 
perplexing  mode  of  coming  at  the  truth,  especially  by  a  trial  by  jury." 
The  sensible,  and  the  only  sensible  rule,  therefore,  to  adopt  in 
regard  to  the  code  is,  that,  while  it  has  abolished  the  distinction  in 
actions  at  law,  and  requires  a  declaration  and  a  bill  in  chancery  to 
be  called  by  the  same  name,  "a  petition,"  it  has  left  each  separate 
case  to  be  stated  according  to  the  law  governing  that  particular  case. 
What  does  the  law  require  to  be  stated  in  this  case  to  constitute  a 
good  cause  of  action  ?     To  answer  this  question,  one  must  resort  to 
Chitty  and  the  cases ;  and  he  will  there  find,  and  there  only,  what 
is  necessary  to  be  stated.     Is  it  a  case  founded  upon  equitable 


PLEADINGS.  125 


principles  ?  Then  you  must  resort  to  Midford,  and  Cooper,  and 
Story,  if  you  would  learn  what  facts  are  necessary  to  he  stated,  in 
order  to  make  a  good  cause  of  action  on  paper.  The  code  does  not 
settle  this  question  of  what  is  to  be  stated,  only  that  a  cause  of  ac- 
tion must  be  set  forth  in  the  petition  ;  and,  if  we  can  not  resort  to 
acknowledged  rules  of  pleading,  to  ascertain  what  facts  make  out 
a  cause  of  action,  and  in  what  language  they  are  properly  stated, 
where  are  we  to  go,  to  ascertain  this  important  matter,  to  answer 
this  important  question?  Does  a  petition  set  forth  a  cause  of  ac- 
tion ?  The  pleader  must  resort  to  either  the  one  or  the  other  of 
these  classes  of  works  ;  and  he  can  not  go  elsewhere,  as  his  case  is 
founded  either  upon  legal  or  equitable  principles,  to  obtain  an  an- 
swer to  his  injury.  The  forms  are  evidence  of  what  the  law  is ; 
they  show  what  facts  the  courts  have  held  to  constitute  a  cause  of 
action,  whether  those  facts  constitute  a  case  at  law  or  one  in  equity. 
The  New  York  courts,  after  seven  years  of  uncertainty  and  con- 
fusion, are  rapidly  coming  round  to  this  common-sense  view  of  the 
matter,  as  the  only  way  up  to  light,  out  of  the  darkness  that  has 
for  so  long  a  time  enveloped  their  pathway.  They  have  found  that 
even  reform,  almighty  and  universal  as  it  claims  to  be,  in  these 
days  of  boasted  enlightenment,  can  not  change  the  inflexible  laws 
of  nature  and  of  mind.  The  mind  will,  nay,  must  classify  its 
knowledge,  and  no  legislation,  short  of  a  statute  of  Omnipotence, 
can  prevent  it.  Hence  causes  of  action  will  invariably  arrange 
themselves  into  classes,  in  spite  of  the  effort  of  the  code  to  get 
rid  of  all  classification,  and  mingle  the  whole  into  one  indis- 
tinguishable mass  of  confusion.  Order  will  grow  up  again  ;  ar- 
rangement will  gradually  take  place  amongst  this  mass  of  facts ; 
and  a  language,  suitable  to  embody  these  facts,  to  express  these 
classifications,  will  be  formed;  while  common  language  will  be  left 
to  express  the  ideas  and  things  with  which  it  is  conversant,  and 
withdraw  from  an  undertaking  to  express  matters,  and  things,  and 
notions,  and  ideas,  with  which  common  language  has  nothing  to  do. 
Every  science  must  have  its  own  facts  and  ideas,  and  a  scientific 
language  adapted  to  express  them ;  and  what  more  absurd  than  to 
require  an  Agassiz  to  express  the  results  of  his  profound  studies  in 
common  language  ?  No  less  absurd  is  it  to  require  the  facts  and 
notions  of  Legal  science  to  be  expressed  in  common  language. 

There  arc  some  rules  stated  in  the  code,  by  which  the  pleader 
should  be  governed.  Section  129  provides  that  neither  presump- 
tions of  law,  nor  matters  of  which  the  courts  will  take  judicial 
notice,  need  be  stated.     This  is  only  a  declaration  of  what  the  law 


126  PLEADINGS. 


of  pleading  already  was.  It  is  unnecessary,  says  Gould  (PI.  53), 
to  allege  matter  of  law.  It  is  only  necessary  to  allege  the  facts  ; 
of  the  law  the  court  will  take  notice ;  so  little  necessary  or  proper 
is  it  to  put  on  paper  a  fact  which  the  court  is  bound  to  know. 
There  is,  then,  nothing  new  in  this  ;  nothing  which  in  the  least 
innovates  upon  the  old  established  ways. 

Sec.  123.  This  section  may  not  be  as  harmless  as  the  other.  It 
must  have  been  introduced  in'  utter  ignorance  of  the  decision  of 
our  rown  courts.  In  New  York  it  had  a  meaning,  and  was  a 
change  for  the  better  ;  in  Ohio  it  has  no  meaning,  or  it  is  a  change 
for  the  worse.  In  New  York,  as  in  England,  private  acts  had  to 
be  pleaded,  set  out  in  full,  or  so  much  of  them  as  would  show  the 
right  of  the  party  to  what  he  claimed.  The  code,  there,  substi- 
tuted for  this  a  mere  reference  to  the  act.  In  Ohio,  it  had  been 
decided  that,  as  all  our  statutes,  private  as  well  as  public,  were 
published  by  authority,  the  court  would  take  judicial  notice  of 
the  former  as  well  as  of  the  latter.  In  England,  private  acts  were 
never  published;  hence  neither  the  courts  nor  others  could  know 
their  contents,  unless  they  were  set  forth  in  pleading.  Brown  v. 
The  State,  11  Ohio,  276,  280.  Under  the  law,  in  Ohio,  it  was 
never  necessary  to  recite  either  the  body  or  title  to  a  private  act. 
The  facts  needed  only  to  be  stated,  which  showed  the  right  under 
the  act,  and  the  court  took  judicial  notice  of  what  were  the  con- 
tents of  the  act.  This  section,  then,  has  no  meaning  here,  or  it  so 
far  changes  the  law  for  the  worse  as  to  require  the  absurdity  of 
referring  to  the  title  of  an  act  of  which  the  court  will  take  notice. 
The  rule  of  our  court  is  right,  or  the  English  one  is.  Either 
the  court  must  take  judicial  notice  of  a  private  act,  or  it  should 
be  set  out ;  otherwise  the  court  has  no  means  of  determining 
whether  a  good  cause  of  action  is  set  out  or  not.  This  New  York 
rule  is  an  absurdity.  Our  court  showed  good  sense  in  saying  that 
when  the  reason  of  a  rule  had  ceased,  the  rule  ceased  with  it. 
The  reason  of  the  rule  was  that  such  acts  were  never  published  by 
authority,  as  the  general  laws  were ;  hence  the  judges  could  not 
take  judicial  notice  of  the  one,  as  they  did  of  the  other.  In  Ohio, 
this  reason  never  did  exist ;  all  laws  were  published  in  the  same 
volume,  with  the  same  authority,  and  stamped  with  the  same 
authenticity.  And  why  not,  then,  take  notice  of  the  one  as  well 
as  the  other?  The  court  answered  this  question  like  sensible  men, 
not  in  the  habit  of  sticking  in  the  bark.  But  now  comes  the  code. 
What  effect  had  this  upon  the  well -settled  law  of  Ohio?     The- 


PLEADINGS.  127 


code  is  not  mandatory ;  it  is  permissive :  it  shall  be  sufficient  to 
refer  to  such  statute  by  its  title.  But  as  it  was  never  necessary,  in 
Ohio,  to  refer  to  such  a  statute  at  all,  it  will  be  undoubtedly  sufficient 
to  refer  to  its  title,  on  the  ground  that  surplusage  never  vitiates ; 
though  it  might  be  stricken  out,  on  motion,  by  another  section  of 
the  code,  as  redundant,  or  impertinent  matter.  We  may,  then,  con- 
.sider  this  section  (123)  as  a  blunder;  as  a  permission  to  do  what 
no  sensible  man  will  be  guilty  of  doing ;  and  so,  in  Ohio,  a  work 
wholly  supererogatory.  By  this  construction,  we  at  least  render  it 
harmless  ;  which  we  should  not  do  by  a  different  interpretation. 

Sec.  124.  This  section  is  also  adopted  from  the  code  of  New 
York;  it  was  introduced  there,  to  get  rid  of  an  absurd  decision  in 
the  case  of  Miller  v.  Maxwell,  16  Wend.  9 — a  decision  which,  it  is 
believed,  was  never  followed  in  Ohio.  By  that  decision,  it  was 
held  that  where  it  was  uncertain,  from  the  libel  itself,  whether  it 
referred  to  the  plaintiff,  the  facts  which  showed  that  the  plaintiff 
was  referred  to  must  be  stated :  that  it  was  not  enough  to  say 
they  were  published  of  the  plaintiff.  An  inducement  is  only 
necessary,  when  the  words  are  actionable  only  in  virtue  of  some 
extrinsic  fact ;  then  that  fact  must  be  set  out.  Towle  v.  Bobbins, 
12  Mass.  498;  Blo&s  v.  Tobey,  2  Bick.  320;  Carter  v.  Andrews, 
16  Bick.  1;  13  lb.  198;  15  lb.  321  ;  8  Mass.  122;  2  Dev.  115; 
14  Maine,  317;  8  N.  Hamp.  256.  And  this  section  has,  in  New 
York,  been  limited  to  the  single  purpose  of  overruling  the  case  of 
Miller  v.  Maxwell.  "Hence,"  says  Duer,  J.,  in  Fry  v.  Bennett, 
1  Code,  N.  S.  247,  "  where  the  meaning  of  the  words  is  so  am- 
biguous that  extrinsic  facts  are  necessary  to  be  proved,  to  show 
them  to  be  actionable  at  all,  the  necessity  of  stating  these  facts  by 
an  explicit  averment,  is  precisely  the  same  as  it  has  always  been. 
As  these  facts  must  be  proved,  to  enable  the  plaintiff  to  maintain 
his  suit,  they  are  material  and  issuable  in  their  nature;  and  a 
change  in  the  rules  of  pleading  that  would  have  relieved  the 
plaintiff  from  the  obligation  of  stating  them  in  his  complaint,  and 
thus  have  taken  from  the  defendant  the  opportunity  of  contro- 
verting them  in  his  answer,  would  have  been  highly  inexpedient." 
This  section,  says  Willard,  J.,  merely  dispensed  with  the  allega- 
tion of  extrinsic  facts,  showing  the  application  of  the  icords  to  the 
p'aintiff,  in  order  to  obviate  the  difficulty  which  was  supposed  to 
have  been  occasioned  by  the  decision  of  the  Supreme  Court,  in 
Miller  v.  Maxwell,  16  Wend.  9.  It  does  not  dispense  with  the 
necessity  of  an  averment  of  innuendo,  when  it  becomes  necessary 
to  show  the  meaning  of  the  words  themselves.     In  these  respects, 


128  PLEADINGS. 


the  rules  of  pleading  remain  unaltered.  5  Pr.  171.  The  same 
view  is  taken  of  this  section  by  Harris,  J.,  in  Pike  v.  Wormer, 
6  Pr.  90.  This  section,  then,  is  another  which,  it  is  believed,  has 
no  application  in  Ohio  ;  since  the  rule  laid  down  in  Killer  v.  Max- 
well never  was  recognized  here  as  law.  Hence  the  section  leaves 
the  law  of  declaring  in  libel  and  slander  unchanged  in  Ohio,  and 
with  but  a  very  slight  modification  in  New  York. 

Sec.  122.  This  section  was  introduced  for  the  benefit  of  igno- 
rance ;  but  had,  in  New  York,  received  such  a  construction  before 
the  adoption  of  our  code,  as  should  have  induced  the  commissioners 
to  have  left  it  out  altogether,  as  being  in  no  whit  an  aid  to  the 
meritorious  class  for  whom  it  was  intended.  Our  commissioners, 
too,  reported  an  absurd  form  from  the  New  York  code,  after  it  had 
been  held  bad  by  the  courts  of  that  State.  In  Ranney  v.  Smith,  6 
Pr.  423,  Marvin,  J.,  says :  "  If  it  is  intended  by  this  section  to  dis- 
pense with  a  statement  of  facts  constituting  the  cause  of  action,  or 
new  matter  constituting  a  defense,  it  is  a  wide  departure  from  the 
system  of  pleading,  as  previously  established  by  the  code.  How 
are  issues  to  be  formed  ?  May  a  complaint  contain  simply  a  copy 
of  the  note,  followed  by  the  allegation  that  there  is  due  to  the 
plaintiff  a  certain  sum,  and  that  he  claims  such  sum?  If  so,  upon 
what  is  the  defendant  to  take  issue?"  "My  opinion  is,"  says 
Welles,  J.,  in  Bank  of  Geneva  v.  G-ulick  et  al.,  8  Pr.  51,  "that  it 
was  not  the  intention  of  the  legislature  by  section  162  (section  122 
of  our  code)  to  dispense  with  any  of  the  requirements  of  section 
142  (section  85  of  our  code).  The  last-mentioned  section  lays 
down  and  establishes  the  rule  in  general  terms,  as  to  what  a  com- 
plaint must  contain ;  and  section  162  is  designed  to  relieve  the 
party  from  setting  out  the  written  instrument  according  to  its  legal 
effect.  It  could  not  have  been  intended,  I  apprehend,  to  excuse 
him  from  stating  his  interest  in,  or  title  to  it,  or  from  alleging  such 
other  facts,  outside  of  the  instrument,  as  were  necessary  to  enable 
him  to  recover  upon  it."  The  same  doctrine  is  maintained  by 
Bacon,  J.,  in  Prindle  v.  Caruthers,  10  Pr.  33,  and  by  Strong,  J,,  in 
Chappell  v.  Bissell,  10  Pr.  275.  The  decisions  in  New  York  have 
been  uniform  as  to  the  effect  of  this  section,  and  as  it  requires, 
really,  just  as  much  as  the  other  sections  of  the  code,  no  forms  are 
given  of  declaring  under  it.  This  book  is  meant  for  lawyers  ;  it  is 
supposed  that  section  122  was  meant  for  another  class  of  men,  for 
whose  benefit  we  do  not  concern  ourselves. 


This  section  has  repeatedly  come  under  consideration  of  the 


PLEADINGS.  129 


courts  of  New  York,  and  the  views  expressed  above  inflexibly  ad- 
hered to.  In  Conkling  v.  Gandall,  1  Keys,  228,  the  plaintiff  had 
declared  under  this  section  (sec.  120)  of  our  code,  on  a  promissory 
note  made  by  Burdiek  &  Finn,  and  indorsed  by  Gandall;  gave 
the  indorsement  on  the  note  by  Gandall;  said  plaintiff  was  owner 
of  note,  and  the  same  was  due.  Gandall  demurred,  because  the 
petition  did  not  state  facts  sufficient  to  charge  him  as  indorser. 
There  was  no  averment  in  petition  that  demand  and  notice  had 
been  made  and  given.  Wright,  J.,  delivered  the  opinion  of  the 
court.  "  This  judgment  (a  judgment  overruling  the  demurrer 
below  and  judgment  against  Gandall  for  amount  of  note),  I  think, 
can  not  be  sustained.  A  complaint,  under  the  code,  must  contain 
a  plain  and  concise  statement  of  the  facts  constituting  a  cause  of 
action  ;  and  it  may  be  demurred  to  if  it  does  not.  No  cause  of  ac- 
tion was  stated  against  the  defendant,  Gandall.  The  allegation 
affecting  him  is  that  he  indorsed  a  promissory  note  for  $256.58, 
made  by  the  firm  of  Burdiek  &  Finn,  payable  to  his  order,  at  the 
Bank  of  Fort  Edward,  four  months  after  date,  which  the  plaintiffs 
own  and  hold.  This  is  not  stating  a  cause  of  action  against  an  in- 
dorser. The  mere  fact  of  indorsement  of  a  negotiable  promissory 
note  gives  no  right  of  action  or  entitles  the  holder  to  recover  of 
the  indorser.  .  .  .  His  contract  is  conditional,  not  absolute, 
and  his  liability  depends  on  facts  outside  of  the  written  instru- 
ment. He  promises  to  pay  only  on  condition  that  the  holder  shall 
present  the  note  for  payment;  and,  if  payment  is  refused,  notice 
shall  be  given  to  him  at  the  time  and  in  the  manner  required  by 
law.  .  .  .  It  is  provided  in  section  162,  chapter  5,  of  the  code, 
entitled,  'general  rules  of  pleading,'  that  in  an  action  or  defense, 
founded  upon  an  instrument  for  the  payment  of  money  only,  it 
shall  be  sufficient  for  the  party  to  give  a  copy  of  the  instrument, 
and  to  state  that  there  is  due  him  thereon  from  the  adverse  party 
a  specified  sum,  which  he  claims.  The  precise  intention  of  the 
legislature,  or  the  framers  of  the  code,  by  this  provision,  is  not 
clcai-,  but  certainly  it  was  not  meant  that  a  complaint  should  be 
good  that  merely  set  forth  a  copy  of  the  instrument,  with  a  state- 
ment that  there  was  due  to  the  plaintiff  thereon  from  the  person 
named  as  a  defendant  a  specific  sum,  without  averring  that  the  de- 
fendant executed  or  delivered  the  instrument,  or  that  it  belonged 
to  the  plaintiff,  or  in  any  way  averring  the  defendant's  liability  or 
the  plaintiff's  title.  Such  a  mode  of  pleading  would  be  so  loose, 
vague,  and  indefinite  that  it  is  nut  to  be  assumed  that  the  legisla- 
vol.  1—9 


130  PLEADINGS. 


ture  intended  to  sanction  it.  This,  however,  would  follow,  if  the 
clause  is  not  to  be  read  in  connection  with  section  142,  but  con- 
strued alone  and  strictly.  How  are  issues  to  be  formed  under  such 
a  complaint,  or  one  dispensing  with  the  requirements  of  section 
1 12  ?  Take  the  present  case.  The  instrument  is  a  promissory  note  ; 
three  parties  are  impleaded  as  defendants ;  a  copy  of  the  instru- 
ment is  given,  accompanied  by  a  statement  that  there  is  flue 
thereon  from  the  persons  named  as  defendants  a  specified  sum, 
which  the  plaintiff  claims,  and  there  is  nothing  more.  The  defend- 
ants may  interpose  by  answer  a  denial ;  but  what  issue  or  issues 
will  be  thereby  framed  ?  There  is  but  a  single  fact'  alleged,  and 
that  in  the  most  general  form,  upon  which  an  issue  can  be  taken, 
to  wit,  that  there  is  due  from  defendants  to  the  plaintiffs  upon  the 
instrument  the  sum  named.  By  denying  this,  would  it  put  in  issue 
the  making  of  the  note  by  Burdick  &  Finn  as  copartners,  and  the- 
the  plaintiffs'  title  to  it  ?  Manifestly  not.  Nor  did  the  pleader  in 
this  case  so  understand  it.  It  is  averred  that  Burdick  &  Finn 
made  the  note  as  copartners,  a  copy  of  which  is  set  out ;  that  the 
defendant  Gandall  indorsed,  and  that  the  plaintiffs  are  the  owners 
and  holders ;  all  of  which  was  unnecessary,  if  the  provisions  of 
section  142  are  dispensed  with  by  section  162,  where  the  'action  is 
founded  upon  an  instrument  for  the  payment  of  money  only.' 
Although  the  intended  purpose  of  the  last  clause  of  section  162  is 
not  clear,  I  am  inclined  to  the  opinion  that  it  was  meant  that,  where 
the  action  or  defense  was  founded  upon  an  instrument  for  the 
payment  of  money  only,  instead  of  setting  forth  the  instrument 
according  to  its  legal  effect  in  the  body  of  the  complaint  or  an- 
swer, it  should  be  sufficient  for  the  party  to  give  a  copy  of  it.  Be 
this,  however,  as  it  may,  it  is  too  improbable  to  suppose  that  it 
was  intended  in  any  class  of  actions  that  a  complaint  should  be 
good  that  did  not  upon  its  face,  either  by  direct  averment,  or  by 
giving  a  copy  of  the  instrument  upon  which  the  action  was 
founded,  with  allegations  connecting  the  parties  with  it,  or  unitedly 
showing  a  cause  of  action  ;  or  which  did  not  contain  material  alle- 
gations to  that  end,  or  upon  which  issue  might  be  taken  ;  or,  if  not 
taken,  judgment  would  legally  pass  against  the  impleaded  parties 
by  default.  In  this  case,  the  instrument  (a  copy  of  which  is 
given)  purports  to  be  for  the  payment  of  money,  but  without  the 
averment  that  it  was  made  by  Burdick  &  Finn,  named  as  defend- 
ants, as  copartners,  and  the  plaintiffs'  title  to  it  appears  in  some 
way  (neither  of  which  facts  is  to  be  implied  from  the  instrument 
itself),  there  would  be  no  statement  of  a  cause  of  action  by  the 


PLEADINGS.  131 


plaintiff  against  them.  There  is  certainly  no  cause  of  action 
shown,  where  the  facts  upon  which  a  plaintiff  grounds  his  right 
to  recover  against  a  party  whom  he  may  choose  to  implead  as  a 
defendant  do  not  affirmatively,  or  by  implication,  appear  upon  the 
face  of  the  pleadings.  .  .  .  His  promise  is  conditional,  and  his 
liability  depends  upon  facts  outside  of  the  instrument  on  which  his 
indorsement  is  made.  An  action  as  against  him  is  founded  on 
something  more  than  an  instrument  for  the  payment  of  money 
only,  even  though  it  should  be  considered  that  section  162  of  the 
code  would  embrace  the  makers  of  a  promissory  note,  whose 
promise  is  contained  in  a  civil  contract,  evidenced  by  the  instru- 
ment itself.  Payment  of  the  note  must  be  first  properly  demanded 
by  the  makers,  and  due  notice  given  to  the  indorser,  before  any 
legal  liability  attaches  to  the  latter.  A  complaint  that  does  not 
aver  facts,  entitling  the  plaintiff  to  recover  against  a  party,  and 
they  do  not  appear  in  the  instrument  set  forth  or  to  be  implied 
therefrom,  must  be  defective.  If  it  be  necessary,  as  against  an  in- 
dorser (which  it  unquestionably  is),  to  establish  his  liability,  to 
prove  a  demand  of  payment  and  notice  of  dishonor  of  the  note,  it 
is  incumbent  upon  the  pleader  to  state  those  facts,  otherwise  the 
-    use  of  action  is  defectively  stated. 

•  Whatever,  therefore,  may  have  been  the  legislative  purpose  in 
e  enactment  of  section  162,  it  was  not  intended  to  include  the 
case  of  a  party  whose  liability  was  not  absolutely  fixed  by  and 
expressed  in  the  instrument,  but  depended  for  its  ever  attaching  on 
conditions  precedent.  Nor  do  I  think  in  any  case,  even  in  that  of 
the  makers  of  a  promissory  note,  the  effect  of  section  162  is  to 
dispense  with  the  requirements  of  'section  142.  A  complaint  that 
did  not  cover  the  making  of  a  promissory  note,  of  which  a  copy  is 
given  by  the  persons  sought  to  be  charged  as  makers,  nor  showed 
that  the  plaintiff  was  the  owner  and  holder,  would,  in  my  judg- 
ment, be  bad  on  demurrer."  There  are  two  other  cases  in  New 
York  where  this  question  has  arisen :  Prindle  v.  Caruthers,  15  N. 
Y.  425,  and  the  case  of  Ketelas  v.  Myers,  19  N.  Y.  231.  Neither 
of  these  cases  raise  the  one  decided  above.  The  court  held  in 
these  cases  that  the  petition  did  state  all  the  facts  necessary  to  con- 
stitute a  right  of  action,  though  Shankland,  J.,  in  Prindle  v. 
Caruthers,  obiter  dictum,  gives  his  construction  of  the  code  some- 
what differenl  from  those  of  Wright,  J.,  above  cited.  The  case  in 
1  Keys,  228,  cited  above,  is  a  later  ease  than  either  of  the  others, 
and  is  the  decision  of  the  court,  and  not  the  dictum  of  a  judge; 


132  PLEADINGS. 


and  hence  that  case  is  the  law  of  New  York.  And  it  would  seem 
to  be  the  true  construction,  unless  one  part  of  the  code  is  to  be  held 
to  repeal  another  part,  which  is  not  a  supposable  case.  This  sec- 
tion can  apply  only  to  those  cases  where  the  instrument  of  writing 
is  one  which  shows  a  liability  of  the  defendant  to  the  plaintiff.  It 
can  not  apply  to  such  instruments  when  indorsed  or  transferred, 
because  the  transfer  must  be  averred  ;  or,  if  the  indorser  is  a  party, 
then  the  facts  must  be  alleged,  which  fix  his  liability  as  indorser. 
The  language  of  our  code  requires  expressly,  what  the  court  there 
say  is  necessary  under  the  section  stated,  what  a  petition  shall 
contain. 

Where,  says  our  code  (sec.  122),  others  than  the  makers  of  a 
promissory  note  or  the  acceptors  of  a  bill  of  exchange  are  parties 
in  the  action,  it  shall  be  necessary  to  state  also  the  kind  of  liability 
of  the  several  parties,  and  the  facts,  as  they  may  be,  which  fix  their 
liability.  In  case  of  indorsed  notes  or  bills  of  exchange,  where  in- 
dorsers  are  parties,  the  averments  must  be  made  under  the  prior 
section,  defining  what  a  petition  should  contain;  and  the  ordinary 
forms  of  petitions  on  promissory  notes  and  bills  of  exchange 
against  drawers  and  indorsers  must  be  followed,  if  the  pleader 
wishes  to  be  certain  that  he  is  right.  The  other  part  of  the  section, 
which  is  substantially  a  copy  of  section  162  of  the  New  York  code, 
will  be  limited  to  accounts  existing  between  the  parties  to  the  suit, 
and  to  notes  and  bills,  which  on  their  face  show  an  existing  liabil- 
ity of  defendant  to  plaintiff.  If  tbe  account  has  been  assigned, 
then  it  will  not  show  such  a  liability  of  defendant  to  plaintiff;  be- 
cause to  show  that,  the  assignment  must  be  averred  ere  the  title  of 
plaintiff  can  appear.  And  such  is  clearly  the  meaning  of  our 
code.  Section  123  of  the  Kansas  code  is  an  exact  copy  of  ours, 
and  will  be  subjected  to  the  same  construction.  Kansas  Stat.  1868, 
p.  652.  The  statute  of  Nebraska  is  also  a  copy  of  ours.  Nebraska 
Stat.  1867,  p.  414,  sec.  129.  These  authorities  and  this  reasoning  ap- 
ply to  both  of  these  statutes,  as  well  as  to  ours  and  that  of  New  York. 
The  sterling  good  sense  of  Judge  Wright's  opinion  will  commend 
it  to  all  thinking  minds. 

Our  own  court,  in  Black  v.  Chesser,  12  Ohio  St.  621,  has  had  this 
section  under  consideration.  By  the  court:  1.  To  constitute  an 
account,  within  the  meaning  of  section  122  of  the  code,  it  is  not 
necessary  that  the  items  be  entered  in  an  account-book,  provided 
they  are  such  as  usually  form  the  subject  of  book  account.  2.  In 
an  action  upon  an  account,  it  is  sufficient  giving  a  copy  of  the 
account,  under  that  section  of  the  code,  for  the  plaintiff,  without 


PLEADINGS.  133 


previously  making  any  entries  in  an  account-book,  to  set  down  in 
writing,  in  the  form  of  an  account,  the  items  thereof,  and  file  it 
with  his  petition. 

Sec.  121.  This  section  provides  that  in  pleading  performance  of 
conditions  precedent  in  a  contract,  it  shall  be  sufficient  to  state  that 
the  party  has  duly  performed  all  the  conditions  on  his  part.  This 
may  be  done  in  cases  where  there  is  no  dispute  as  to  the  perform- 
ance ;  but  where  there  is  a  real  dispute,  the  plaintiff  will  gain  by 
specifically  alleging  it,  as  the  defendant  must  then  deny  the  specific 
allegation  ;  whereas  many  a  defendant  will  deny  this  averment  of 
general  performance,  who  will  not  that  of  the  specific  fact  con- 
stituting the  performance.  In  the  one  case,  it  may  be  a  conclusion 
of  law  he  is  answering  to,  instead  of  a  denial  of  the  real  fact ;  and 
so  you  would  be  compelled  to  try  a  case,  in  order  to  raise  a  legal 
question,  which  would  have  been  raised  on  the  record,  if  the  plea 
had  averred  performance  specifically.  In  all  disputed  cases,  there- 
fore, it  is  best  to  follow  the  common -sense  view  of  putting  on  record 
the  facts  of  your  case. 

This  mode  of  declaring  generally  that  the  plaintiff  has  per- 
formed all  conditions  on  his  part  to  be  performed  was  first  in- 
troduced into  England,  and  has  thence  been  transferred  into  our 
pleadings.  The  English  practice,  under  the  statute,  allowing  such 
general  pleading,  is  founded  in  good  sense,  and  ought  to  be  fol- 
lowed. If  the  petition  sets  out  all  the  conditions  contained  in  the 
contract,  on  which  the  action  is  founded,  the  defendant  can  deny 
that  the  plaintiff  has  performed  any  specific  condition  he  may 
select;  and  this  is  all  that  is  necessary  in  such  a  case.  The  condi- 
tion is:  on  the  record,  the  averment  of  its  performance,  and  a  denial 
of  this  averment  as  applied  to  the  specific  condition.  But  if  the 
petition  does  not  set  forth  the  conditions  in  the  contract  specifically, 
then  the  defendant  must  answer  setting  up  that  by  said  agreement, 
it  was  provided  so  and  so,  as  the  condition  may  be,  and  then 
negative  or  deny  that  the  plaintiff  has  performed  that  condition  so 
recited.  The  case  of  Trott  v.  Smith,  10  M.  &  W.  453 ;  S.  C,  12  M.  & 
W.  688,  exhibits  this  mode  of  pleading,  where  the  plaintiff  does  not 
insert  in  his  declaration  the  conditions  precedent.  In  this  case, 
the  declaration  shows  no  conditions  precedent  whatever,  and, 
therefore,  contains  no  averment  of  all  conditions  precedent.  It 
would  seem  that  such  an  averment  is  only  necessary  when  the 
declaration  or  petition  shows  such  conditions.     A  party  may  declare 


134  PLEADINGS. 


on  a  contract  omitting  the  conditions  subsequent  or  precedent,  if 
he  can  make  on  paper  a  case  without  setting  them  forth.  If  he 
sets  out  the  contract  in  words  and  figures,  the  conditions  must  be 
copied,  if  they  are  contained  in  the  agreement  itself,  but  if  like 
conditions  on  a  policy  of  insurance  merely  referred  to.  it  may  not 
be  necessary.  In  the  case  of  Mason  v.  Harvey,  20  Eng.  L.  & 
Eq.  541,  the  condition  to  an  action  on  a  fire-policy  is  set  up  in  the 
plea,  with  an  averment  that  plaintiff  had  not  complied  with  and 
performed  it.  Even  if  the  condition  is  stated  in  the  declaration, 
the  defendant  may  restate  it  in  his  plea  and  aver  the  non -perform- 
ance on  the  part  of  the  plaintiff.  Graves  v.  Legg,  25  Eng.  L.  &  Eq. 
552 ;  Glenn  v.  Leith,  22  Eng.  L.  &  Eq.  489.  Vide  Oakley  v.  Morton, 
11  N.  Y.  30;  Holmes  v.  Holmes,  9  N.  Y.  525  ;  Garvey  v.  Fowler,  4 
Sandf.  665 ;  Clarke  v.  Crandall,  27  Barb.  73. 

Several  Counts. 

Under  the  old  practice,  a  party  could  state  his  case  in  various 
forms,  and  under  various  aspects.  But  under  the  code  all  fictions  are 
abolished,  and  parties  are  required  to  state  the  facts  of  their  cases. 
A  fact  is  defined  to  be  a  thing  done;  a  reality,  not  a  supposition  ;  an 
action,  a  deed.  All  of  these  definitions  call,  and  some  of  them  em- 
phatically, for  the  truth.  The  first  edition  of  the  code  contained 
the  same  requisition,  that  the  complaint  should  set  forth  a  state- 
ment of  the  facts  constituting  the  cause  of  action ;  and  it  also  re- 
quired that  it  should  be  verified ;  of  course  that  statute  called  for 
a  true  statement;' and  the  same  phraseology  used  in  a  subsequent 
statute  must  have  the  same  interpretation.  Indeed,  the  principal, 
and  I  am  constrained  to  say,  almost,  the  only  beneficial  object  of  the 
legislature  in  adopting  the  code,  was  to  abolish  the  use  of  fictitious 
allegations  in  our  written  pleadings;  which  had  a  tendency  to  mis- 
lead the  parties,  and  embarrass  those  to  whom  the  administration 
of  the  law  was  confided.  Now,  as  there  can  be  but  one  substan- 
tially true  statement  of  a  single  cause  of  action,  the  practice  of  set- 
ting it  forth  in  different  counts  is  necessarily  abolished.  Per  S.  B. 
Strong,  10  Pr.  155. 

The  view  above  expressed  has  been  confirmed  since  by  the  courts 
in  this  State  and  in  New  York.  In  Ferguson  v.  Gilbert,  16  Ohio 
St.  88,  it  was  held  that  the  plaintiff  could  not  state  the  same  cause 
of  action  in  various  ways.  The  code  of  civil  procedure  does  not 
authorize  the  same  cause  of  action  to  be  stated  in  different  forms 
as  so  many  distinct  causes  of  action.  The  court  say:  "  Such  a  mode 
of  pleading  is  unauthorized  by  the  code ;  and  it  would  have  been 


PLEADINGS.  135 


the  duty  of  the  court,  on  motion  of  either  defendant  to  have  or- 
dered the  second  count  to  be  stricken  out,  or  to  have  required  the 
plaintiff  to  elect  upon  which  count  she  would  proceed,  and  to  strike 
out  the  other.  Sturges  v.  Burton,  8  Ohio  St.  215.  But  no  objec- 
tion seems  to  have  been  taken  to  the  petition  by  motion  or  other- 
wise  The  second  cause  of  action  adds  nothing  to  the 

allegations  of  the  first,  and  whilst  it  is,  therefore,  useless,  it  is  at 
the  same  time,  harmless,  and  maybe  regarded  as  mere  surplusage." 
So  where  the  complaint  and  prayer  thereof  are  such  as  to  embrace 
both  equitable  and  legal  remedies,  the  defendant  may  move  the 
court  to  compel  the  party  to  elect  on  which  part  of  the  case  he  will 
proceed,  or  for  which  mode  of  trial  or  resulting  relief  he  will  go. 
Penn.  Coal  Co.  v.  Del.  and  Hud.  Canal  Co.,  1  Keys,  72.  It  must  be 
borne  in  mind  that  this  was  a  case,  where  the  facts  as  stated  would 
have  sustained  an  action  at  law  or  a  bill  in  equity.  It  was  not  a 
case  of  two  counts  on  separate  causes  of  action.  The  party  could 
have  but  one  relief,  while  he  had  framed  his  petition  so  as  to  obtain 
either  of  two  reliefs,  one  at  law  and  the  other  in  equity;  hence  he 
had  to  elect  which  remedy  he  would  prefer,  and  adhere  to  that. 
The  same  doctrine  is  asserted  in  Comm'rs  of  Jackson  Co.  v.  Hoaglin, 
5  Kansas,  558.  In  this  case  the  petition  averred  that  the  county 
board  of  Jackson  county  at  divers  and  sundry  times  during  the 
space  of  four  or  five  years  illegally  issued  county  orders  to  the  de- 
fendant, who  drew  the  money  on  the  same  from  the  county  treasury 
and  converted  the  same  to  his  own  use  :  it  was  held  that  if  the  peti- 
tion stated  any  cause  of  action,  it  states  as  many  separate  and  dis- 
tinct causes  of  action  as  there  are  separate  and  distinct  conversions 
of  the  public  funds;  and  that  on  motion  plaintiff  should  have  been 
required  to  separate  the  several  causes  in  distinct  counts,  and  if  he 
refused  to  do  it,  the  court  could  dismiss  the  action.  The  count  in 
this  case  should  have  been  a  count  for  money  had  and  received  to 
and  for  the  use  of  the  plaintiff.  Money  obtained  from  another  by 
fraud  is  still  the  money  of  the  party  defrauded,  and  is  in  law  money 
of  the  party  defrauded,  had  and  received  by  the  party  so  obtaining 
it  for  the  use  of  the  party  defrauded.  It  would  be  well  for  lawyers, 
though  there  is  a  code,  to  study  the  scope  and  uses  of  common 
counts;  in  that  ease,  many  petitions  would  be  much  shorter  than 
they  are,  ami  both  lawyers  and  the  court  see  more  clearly  what  the 
real  issue  is.  Whatever  was  a  good  count  under  the  old  practice 
i-  ;i  Lr,""l  '-"mil  under  the  code.  The  code  definition  of  a  petition 
is  Chitty's  and  Gould's  definition  of  a  declaration;  the  substance 
in  boll i  cases  is  t he  same. 


136  PLEADINGS. 


The  reason  for  the  various  statements  of  the  same  cause  of  ac- 
tion  grew  out  of  the  necessity  of  meeting  a  variance  between  the 
pleadings  and  the  evidence.     In  cases  of  verbal  contracts  it  is  often 
impossible  to  anticipate  what  the  evidence  may  literally  prove. 
The  plaintiff  may  have  his  understanding  of  the  conti-act,  but  will 
the  testimony  sustain  that  understanding  ?     Often  no  one  can  tell 
in  advance ;  hence,  where  amendments  could  not  be  granted  to 
meet  a  variance,  the  pleader  had  to  frame  his  declaration  in  such 
a  way  to  meet  any  possible  variation  in  the  evidence.     So  where 
the  construction  of  a  written  contract  was  uncertain,  the  contract 
had  to  be  set  out  to  meet  whatever  view  the  court  might  take  of 
the  contract.     And  there  are  cases  now,  where  such  a  right  of 
stating  the  case  would  save  both  time  and   money.      Variances 
would  be  anticipated  and  met  in  the  petition.     Now  it  is  met  by  a 
motion  to  amend  ;  but  this  may  involve  a  continuance,  or  the  pay- 
ment of  a  large  bill  of  costs.     The  party  is  in  the  power  of  the 
court  exercising  under  the  code  a  sort  of  imperial  discretion  in  the 
matter  of  amendments ;  whereas,  if  the  pleader  could  have  been 
permitted  to  anticipate  in  his  petition  this  possible  variance  in  the 
evidence,  he  would  have  escaped  the  discretion  of  the  court  and 
the  costs  of  a  leave  to  amend.     In  my  practice,  I  have  seen  cases 
of  this  character,  where  justice  would  have  been  better  served  by 
this  right  to  state  the  cause  of  action  in  different  forms,  without 
injury  to  any  one.     It  seems  to  those  who  do  not  understand  the 
reason  of  the  law,  that  this  varied  statement  of  a  cause  was  purely 
arbitrary  and   unnecessary ;   whereas,  the  practice   originated  in 
sound  reason,  and  was  sanctioned  by  the  courts  in  furtherance  of 
justice.     The  discretion  of  a  judge  is  somewhat  uncertain  in  its 
action  and  variant  in  its  application.     No  party  should  be  left  to 
the  discretion  of  a  judge,  where,  by  any  possibility  of  anticipation, 
it  can  be  obviated.     And  most  variances  might  be  anticipated  by 
the  pleader  in  his  petition  if  he  was  allowed  to  do  it.     The  loose 
pleading  under  the  code  has  increased  the  record  of  most  cases 
more  than  double;  this  arises  from  not  discriminating  between  fact 
and  evidence.     In  many  cases  both  the  fact  and  the  evidence  will 
be  set  forth  so  as  to  render  it  difficult  to  tell  how  an  issue  should  be 
framed  on  such  a  petition ;  and  often  you  see  a  denial  of  the  evi- 
dence rather  than  of  the  fact.     But  this  is  a  question  for  the  law- 
making power,  and  not  for  the  courts. 


PLEADINGS.  137 


Cases  depending  upon  Principles  in  Equity. 

The  code  changes  the  form  of  a  bill  to  some  extent.  Discovery- 
ceases  to  be  any  longer  one  of  the  objects  of  a  court  of  equity ;  this 
object  is  now  obtained  by  a  direct  examination  of  the  parties  to  a 
suit.  Hence  this  part  of  a  petition  must  be  omitted.  "With  this 
must  be  omitted  the  exhibition,  with  the  petition,  of  all  papers, 
documents,  and  facts,  which  tend  merely  to  prove  the  legal  fact,  or 
facts,  on  which  the  plaintiff's  right  to  relief  depends. 

The  petition  will,  therefore,  contain  only  the  facts  on  which  the 
right  to  relief  depends.  It  will  be  what  the  stating  portion  of  an 
old  bill  in  chancery  was  ;  but  the  petition  must  sometimes  go  far- 
ther, and  anticipate  a  defense,  by  showing  facts  which  are  an  an- 
swer to  such  defense.  On  a  parol  contract  to  convey  land,  the 
petition  must  anticipate  a  plea  of  the  statute  of  frauds,  by  showing 
acts  amounting  to  a  part  performance.  So,  also,  the  petition  must 
anticipate  a  defense  growing  out  of  a  lapse  of  time,  and  probably 
one  founded  on  the  positive  provisions  of  the  statute  of  limitations. 
So,  also,  a  defense  of  infancy  must  be  anticipated,  and  the  petition 
must  show  the  facts  that  avoid  it.  In  other  words,  the  whole  case 
must  be  stated.  If  an  account  has  been  stated,  a  petition  for  an 
account  will  not  lie  ;  a  plea  of  the  account  stated  will  be  a  bar.  The 
stated  account  must  be  the  basis  of  the  petition  ;  it  must  state  that 
as  a  fact,  and  proceed  to  show  that  it  was  obtained  by  fraud,  or  that 
there  are  mistakes  in  it,  by  including  what  ought  not  to  have  been 
included,  or  by  omitting  what  ought  to  have  been  included.  So, 
if  a  release  has  been  given,  it  should  be  attacked  and  got  rid  of  in 
the  petition,  so  that  the  way  will  be  left  open  for  relief  on  the  cause 
of  action  so  released.  These  are  familiar  principles  in  pleadings  in 
equity,  and  the  code  has  not  interfered  with  them.  The  case  is 
still  to  be  stated,  and  how  shall  it  be  done,  except  in  the  method 
heretofore  held  necessary?  These  are  the  facts  which  the  law  re- 
quires to  be  stated,  and  they  must  be  stated  now  just  as  clearly  as 
before. 

The  code  says  that  each  cause  of  action  must  be  separately  stated. 
This  can  not  apply  to  pleadings  in  chancery.  There  may  be  sev- 
eral grounds  of  relief  growing  out  of  the  same  facts.  Has  every 
one  to  be  stated  separately,  in  a  separate  count,  as  is  the  case  in  an 
action  at  law?  Then  there  will  be  no  end  to  chancery  pleadings, 
if  all  the  facts  have  to  be  restated  just  as  often  as  there  are  sepa- 
rate grounds  of  relief.  The  thing  is  absurd  ;  call  the  bill  a  petition 
if  you  will,  but  in  heaven's  name  exercise  common  sense,  in  stating 


138  PLS  'DINGS. 


your  case  in  such  a  form  as  the  wisdom  of  a  large  experience  has 
devised  to  he  the  most  appropriate.  The  case  must  still  be  stated, 
as  it  ever  was,  all  in  one  single  statement;  and  Midford,  Cooper, 
and  Story  must  be  your  guides  in  learning  when  the  thing  is 
right,  and  when  not.  There  is  no  other  method  by  which'  the 
pleader  ean  be  certain  that  he  is  right,  and  there  is  no  other  method 
by  which  the  statement  can  be  made  as  briefly  and  intelligently. 

These  views  have  since  been  confirmed  by  the  decisions  of  the 
courts.  The  inherent,  irreconcilable  difference  between  suits  at 
law  and  bills  in  chancery  is  recognized  in  the  code,  and  can  not 
be  obliterated  from  it.  Selden,  J.,  ably  discusses  this  ques- 
tion in  the  case  of  .Reubens  v.  Joel,  13  N.  Y.  488,  493.  "  What  are 
the  distinctions,"  he  says,  "  between  actions  at  law  and  suits  in 
equity?  The  most  marked  distinction  obviously  consists  in  their 
different  modes  of  relief.  In  the  one,  with  a  few  isolated  excep- 
tions, relief  is  invariably  administered,  and  can  only  be  adminis- 
tered, in  the  form  of  a  pecuniary  compensation  in  damages  for  the 
injury  received  ;  in  the  other,  the  court  has  a  discretionary  power 
to  adapt  the  relief  to  the  circumstances  of  the  case.  By  what 
process  can  these  two  modes  of  relief  be  made  identical  ?  It  is 
possible  to  abolish  one  or  the  other,  or  both,  but  it  certainly  is  not 
possible  to  abolish  the  distinction  between  them.  The  legislature 
may,  unless  prohibited  by  the  constitution,  enact  that  no  court 
shall  hereafter  have  power  to  grant  any  relief,  except  in  the  form 
of  damages,  and  thereby  abolish  all  suits  in  equit}r ;  or  that  all 
courts  shall  have  power  to  mold  relief  to  suit  the  particular  case, 
and  thereby  virtually  abolish  actions  at  law  as  a  distinct  class.  To 
illustrate  by  a  single  case  ;  they  may  pi'ovide  that  where  a  vendor 
of  land,  who  has  contracted  to  sell  and  received  the  purchase 
money,  refuses  to  convey,  the  vendee  shall  have  no  remedy  but  an 
action  for  damages,  or,  on  the  other  hand,  that  he  shall  be  con- 
fined to  a  suit  for  a  specific  performance;  but  it  is  clearly  beyond 
the  reach  of  their  powers  to  make  these  two  remedies  the  same. 
Another  leading  distinction  between  common-law  actions  and  suits 
in  equity  consists  in  their  different  modes  of  trial.  The  former 
are  to  be  tried  by  a  jury,  the  latter  by  the  court.  Can  the  legis- 
lature abolish  this  distinction?  They  might  but  for  the  restraints 
of  the  constitution  abolish  either  kind  of  trial,  or  reclassify  the 
classes  to  which  they  apply  ;  but  they  can  not  make  trial  by  jury 
and  trial  by  court  the  same  thing.  It  is  plain  that  the  only  way 
in  which  the  declaration  contained  in  section  69,  that  '  there  shall 
be  in  this  State  hereafter  but  one  form  of  action  for  the  enforce- 


PLEADINGS.  139 


ment  or  protection  of  private  rights  and  the  redress  of  private 
wrongs,'  can  be  made  good,  is  by  abolishing  both  the  form  of  trial 
and  the  mode  of  relief  in  one  or  the  other  of  the  two  classes  of 
actions.  When  this  is  done,  and  not  till  then,  shall  we  have  one 
homogeneous  form  of  action  for  all  cases. 

"  It  is,  in  my  judgement,  clear  that  the  legislature  has  not  the 
constitutional  power  to  reduce  all  actions  to  one  homogeneous 
form;  because  it  could  only  be  done  by  abolishing  trial  b}*  jury, 
with  its  inseparable  accompaniment — compensation  in  damages — 
which  would  not  only  conflict  with  article  1,  section  2,  which  pre- 
serves trial  by  jury,  but  would,  in  effect,  subvert  all  jurisdiction  at 
law,  as  all  actions  would  thereby  be  rendered  equitable ;  or  by 
abolishing  trial  by  the  court  with  its  appropriate  incident — specific 
relief— which  would  destroy  all  equity  jurisdiction,  and  convert 
every  suit  into  an  action  at  law. 

"  Instead  of  being  abolished,  the  essential  distinctions  between 
actions  at  law  and  suits  in  equity  are  by  these  sections  expressly 
preserved.  Actions  at  law  are  to  be  tried  by  a  jury,  suits  in  equity 
by  the  court.  Damages  are  to  be  given,  as  heretofore,  in  the  former, 
and  specific  relief  in  the  latter. 

"  The  same  distinction  is  kept  up  in  the  provisions  in  regard  to 
costs.  In  the  cases  mentioned  in  section  304,  which  are  actions  at 
law,  costs  are  allowed  of  course ;  while  in  other  actions,  that  is,  in 
equity  suits,  they  rest  by  virtue  of  section  306,  as  formerly,  in  the 
discretion  of  the  court. 

"As  section  G9,  therefore,  is  plainly  in  conflict,  not  only  with  the 
constitution,  but  with  the  subsequent  provisions  of  the  code  itself, 
it  can  not  aid  us  in  putting  the  proper  construction  upon  section 
219. 

"  It  becomes  necessary,  then,  to  construe  the  latter  section  by 
itself;  and  if  we  carefully  scrutinize  its  provisions,  it  will  be  found 
to  bear  upon  its  face  unmistakable  evidence  of  a  discrimination  by 
the  legislature,  in  its  enactment,  between  actions  at  law  and  suits 
in  equity.  The  first  branch  of  the  section  plainly  applies  to  the 
latter  class  of  actions  exclusively.  It  provides  that,  when  the  re- 
lief demanded  in  the  complaint  'consists  in  restraining  the  com- 
mission or  continuance  of  some  act,' or  where,  during  the  litiga- 
tion, it  shall  appear  thai  the  defendant  is  doing  or  threatens  to  do 
Borne  ad  in  violation  of  the  plaintiffs  rights  respecting  the  subject: 
of  the  action]  ;i  temporary  injunction  may  be  granted.  Now  it  is 
manifest  that  this  provision  can  only  apply  to  suits  in  equity,  or  to 


140  PLEADINGS. 


suits  made  triable  by  the  court,  which  is  the  same  thing.     The 
terms  used  incontrovertibly  establish  this." 

It  will  thus  be  seen  that  the  distinction  between  actions  at  law 
and  suits  in  equity  is  recognized  in  the  constitution,  in  our  gen- 
eral legislation,  and  in  the  code  itself.  It  is,  therefore,  impossible 
to  disregard  this  fundamental  distinction  ;  we  must  recognize  and 
act  upon  its  existence. 

Such  being  the  case,  the  pleadings  in  the  two  classes  of  cases  can 
not  be  contracted  into  the  same  mold,  but  each  must  correspond 
with  the  nature  of  the  case,  and  the  modes  heretofore  adopted  to 
obtain  relief  in  either  class  of  cases.  Actions  of  equity  must  con- 
tinue to  be  what  they  were  before  substantially,  and  actions  at  law 
what  they  were  before  the  code;  and  the  pleadings  in  each  class 
of  cases  must  follow  substantially,  in  the  one  case,  the  common-law 
declaration,  in  the  other  an  old  bill  in  chancery.  If  this  con- 
struction is  not  to  be  given  to  the  code,  if  there  is  but  one  form  of 
stating  a  cause  of  action,  what  is  that  form  to  be  ?  Indeed,  differ- 
ent common-law  actions  can  not  be  stated  alike  in  the  petition. 
An  action  on  a  note  can  not  be  stated  like  the  petition  against  a  rail- 
road for  negligently  injuring  a  party.  Hence,  petitions  inequitymust 
be  framed  according  to  the  law  of  equity,  and  not  according  to  the 
law  governing  common -law  actions.  We  must  look  to  works  on 
pleadings  in  equity  in  the  one  case,  and  to  works  of  pleading  in 
actions  at  law  in  the  other.  And  such  is  the  universal  practice  ;  a 
petition  in  a  suit  in  equity  is  now  substantially  what  in  Ohio  was 
formerly  a  bill  in  chancery ;  and  it  must  be  so,  if  we  are  to  obtain 
equitable  relief.  To  obtain  that  relief,  we  must  state  in  the  petition 
a  case,  the  facts,  which  justify  the  granting  of  that  relief.  The 
old  bill  in  chancery  was  framed  on  that  principle,  and  under  the 
code,  we  must  follow  those  forms,  if  we  are  to  obtain  the  like  re- 
lief. 

The  plaintiff  must  make  his  case  in  his  petition,  and  he  must 
sncceed  or  fail  on  that  state  of  facts.  So,  where  a  party  filed  a 
petition  against  his  debtor  and  trustee  to  obtain  a  benefit  under  an 
assignment  in  trust  for  creditors,  it  was  held  that  he  could  not  re- 
cover on  the  ground  that  the  assignment  was  fraudulent  and  void. 
"  It  is  a  rule  in  chanceiy,"  says  Wright,  J.,  "  not  affected  by  the 
code,  that  a  party  must  recover  according  to  the  case  made  by  his 
complaint,  or  not  at  all ;  secundem  allegata,  as  well  as  probata.  No 
decree  can  be  made  in  favor  of  a  plaintiff  on  grounds  not  stated 
in  his  complaint,  nor  relief  granted  for  matters  not  charged,  al- 
though they  may  be  apparent  from  some  part  of  the  pleadings  and 


PLEADINGS.  141 


evidence.  Kelsey  o.  Western,  2  Comst.  506  ;  Ferguson  v.  Fergu- 
son, 2  lb.  160 ;  Bailey  v.  Eider,  6  Seld.  363 ;  Thomas  v.  Carter,  4 
Barb.  265  ;  New  York  Prot.  Ins.  Co.  v.  Nat.  Ins.  Co.,  20  Barb.  473. 
If  it  be  as  is  claimed,  that  the  deed  was  void  as  against  the  plaintiffs 
judgment,  for  the  reason  that  it  was  a  conveyance  by  Mrs.  Eames 
of  her  property  in  trust  for  her  own  use,  or  that  it  was  made  to 
hinder,  delay,  and  defraud  her  creditors,  these  matters  should  have 
been  alleged.  Not  being  alleged  in  the  pleading,  no  proof  of  them 
could  properly  be  received,  or  no  judgment  predicated  upon  them. 
Chautauqua  County  Bank  v.  White,  2  Seld.  236 ;  Bailey  v.  Eider, 
supra.  Most  clearly,  when  a  party  claims  the  benefit  of  a  trust 
conveyance,  treating  it  as  valid  in  his  complaint,  and  nowhere 
seeking  to  impeach  it,  he  is  not  entitled  to  any  relief  on  the  ground 
that  it  is  void  or  fraudulent,  or  intended  to  defraud  creditors;  and 
this  is  so  although  it  may  appear  to  be  fraudulent  or  void  on  the 
pleadings  and  evidence.  Ontario  Bank  v.  Eoot,  3  Paige,  478. 
This  doctrine  is  in  harmony  with  the  law  as  it  now  exists,  the  code 
providing  that  '  the  relief  granted  to  the  plaintiff,  if  there  be  no 
answer,  can  not  exceed  that  which  he  shall  have  demanded  in  his 
complaint ;  but  in  any  other  case,  the  court  may  grant  him  any 
relief  consistent  with  the  case  made  by  the  complaint,  and  em- 
braced within  the  issue.'  In  the  present  case,  the  only  relief  that 
could  have  been  granted  '  consistent  with  the  complaint  and  em- 
braced within  the  issue,'  was  to  direct  the  payment  of  the  plaint- 
iffs judgment  by  the  trustee  as  being  a  debt  provided  for  in  the 
trust  deed  itself  A  decree  setting  aside  the  deed  on  the  ground 
that  is  was  fraudulent  or  void  against  the  plaintiff,  that  they  might 
subject  the  property  in  the  hands  of  the  defendant,  Kirkland.  to 
the  payment  of  the  judgment,  would  have  been  utterly  inconsist- 
ent with  the  case  made  by  the  complaint,  and  wholly  without  any 
issue  raised  by  the  pleadings." 

This  case  recognizes  the  importance  of  stating  the  case  correctly 
in  the  petition  ;  the  same  importance  is  attached  to  it  now  as  there 
was  under  the  former  practice  in  chancery.  The  plaintiff  must 
state  his  case  as  it  will  turn  out  in  evidence,  because  he  can  not 
set  out  one  case  and  prove  and  recover  on  another.  When  a  vari- 
ance springs  up  out  of  the  evidence,  it  can  only  be  obviated  by  an 
amendment,  with  the  delay  and  costs  incident  to  it. 


142  PLEADINGS. 


The  Prayer  or  Demand  for  Relief. 

If  the  demand  be  for  money  only,  the  amount  thereof  should  be 
stated;  and  if  interest  thereon  is  claimed,  the  time  from  which  it 
is  to  be  computed  must  also  be  stated.  In  actions,  then,  for  the 
recovery  of  money,  there  are  two  classes  :  one  where  a  sum  certain, 
with  interest,  is  demanded;  and  the  other  where  the  sum  is  uncer- 
tain, to  be  found  by  the  court  or  a  jury.  In  the  first  class  is  em- 
braced all  those  cases  where  the  affidavit  goes  to  the  truth  of  the 
amount  demanded.  The  verification  applies  to  the  sum  stated, 
only  in  actions  founded  on  contracts,  express  or  implied,  for  the  pay- 
ment of  money  only.  The  cause  of  action,  then,  must  be  founded 
on  contract,  and  not  only  on  contract,  but  on  a  contract  for  the 
payment  of  money  only.  This  language  is  substantially  the  same 
as  that  employed  in  section  122. 

What,  then,  is  a  contract  for  the  payment  of  money  only?  We 
suppose  it  is  one  where  an  averment  of  the  non-payment  of  the 
money  is  all  that  the  breach  is  necessary  to  show  a  right  to  recover. 
If  the  petition  must  contain  any  statement,  except  those  of  a  legal 
liability  to  pay  a  sum  of  money,  and  the  non-payment  of  it,  then  it 
is  not  a  contract  lor  the  payment  of  money  only.  An  action  on  a 
warranty  in  a  deed,  for  the  loss  of  goods  by  common  carrier,  for 
the  recovery  of  money  on  the  rescission  of  a  contract,  can  not  be 
included  in  this  class ;  for  though  the  rule  of  damages  is  certain, 
still  it  has  to  be  assessed  as  damages.  The  exact  sum,  then,  must 
be  stated  in  all  cases,  where  an  indebitatus  count  in  debt  would  lie, 
on  all  notes,  bills,  etc.,  whereby  the  maker  binds  himself  to  pay  a 
sum  certain  of  money.  In  these  cases,  the  prayer  must  state  the 
exact  sum  due,  and  the  exact  time  from  which  interest  is  payable. 
In  other  words,  he  must  state  the  facts,  so  that,  on  a  default  tor 
answer,  the  court  can,  by  an  inspection  of  his  petition,  calculate 
the  amount  for  which  judgment  is  to  be  rendered  ;  as  in  such  case 
the  plaintiff  is  entitled  without  evidence  to  the  sum  and  interest 
thereon,  as  he  demands. 

In  all  other  cases  the  sum  to  be  stated  may  be  any  sum  which 
will  be  sufficient  to  cover  what  the  plaintiff  claims.  In  other 
words,  in  these  cases,  the  amount  claimed  should  be  stated  as  dam- 
ages ;  in  the  other,  as  a  debt. 

It  is  very  important  to  keep  up  this  distinction ;  otherwise,  par- 
ties may  be  making  oaths  to  sums,  to  the  exact  truth  of  which  they 
never  dreamed  of  affirming  on  oath  ;  or,  in  other  cases,  parties 


PLEADINGS.  143 


may  be  in  difficulty  in  laying  their  damages  too  low,  through  fear 
of  being  sworn  to  the  truth  of  the  amount. 

In  real  actions  the  prayer  will  be  for  the  recovery  of  the  land 
and  damages,  if  they  are  claimed.  So  in  replevin,  the  prayer 
must  be  for  a  return  of  the  property  and  damages  for  its  detention. 

In  cases  founded  on  principles  of  equity,  the  prayer  must  de- 
mand the  specific  relief  the  party  is  entitled  to.  There  is  here  no 
general  prayer  broad  enough  to  cover  any  relief  the  case  will  jus- 
tify ;  the  plaintiff  must  forecast  his  relief,  and  be  sure  to  do  it 
right,  unless  he  can  be  sure  of  leave  to  amend  ;  and  that  hangs 
upon  the  discretion  of  a  judge. 

Claims,  both  for  legal  and  equitable  relief,  may  be  united  in  one 
action,  where  they  grow  out  of  the  same  transaction,  but  not  other- 
wise. Getty  v.  H.  Eiv.  R.  R.  Co.,  6  How.  Pr.  269 ;  New  York  Ice 
Co.  v.  Northwestern  Ins.  Co.,  23  N.  Y.  357  ;  S.  C,  21  How.  Pr.  296  ; 
12  Abb.  414;  Bidwell  v.  Astor  Mutual  Ins.  Co.,  16  N.  Y.  263; 
Lamoreux  v.  Atlantic  Mutual  Ins.  Co.,  3  Duer,  680  ;  Wandle  v. 
Turncy,  5  Duer,  661.  Where  they  are  not  inconsistent  with  each 
other:  Linden  r.  Fritz,  3  Code,  165;  S.  C,  5  Sandf.  668;  Trull  v. 
( I  ranger,  8  N.  Y.  4.  To  demand  judgment  for  forfeiture  of  a  lease, 
and  that  the  defendant  be  restrained  by  injunction  from  repairing 
the  demised  premises,  is  inconsistent.  Linden  v.  Fritz,  supra. 
And  so  of  a  demand  for  relief  and  a  demand  of  judgment  for  a 
specific  sum.  Durant  v.  Gardner,  10  Abb.  445  ;  S.  C,  19  How.  Pr. 
94.  Alternative  equitable  relief  may  be  prayed  for  and  obtained 
now  as  heretofore.  Linden  v.  Fritz,  supra ;  Young  v.  Edwards,  11 
How.  Pr.  201.  But  it  is  improper  to  unite  in  one  complaint  pray- 
ers for  relief  against  the  defendant,  individually  and  in  his  capacity 
of  executor.  McMahon  v.  Allen,  1  Hilt.  103 ;  S.  C,  3  Abb.  89.  An 
objection  to  the  relief  prayed  for  should  be  taken  by  motion. 
Durant  v.  Gardner,  10  Abb.  445  ;  Eecost  ?\  Townsend,  6  How.  Pr. 
460,  463  :  Walton  v.  Walton,  32  Barb.  203  ;  20  How.  Pr.  347.  The 
plaintiff  may  demand  any  kind  of  relief  to  which  he  supposes 
himself  entitled,  and  he  is  not  confined  to  one  kind  of  relief.  Hall 
V.  Hall.  38  How.  Pr.  97.  But  a  prayer  for  damages,  exclusively, 
prevents  a  judgment  tor  specific  performance,  notwithstanding  the 
complain!  contains  tacts  sufficient  to  warrant  it.  Ryder  v.  Jenney, 
2  Rob.  56,  <;.").  And  where  the  complaint  prayed  judgment  for 
a  -urn  of  money,  and  the  relief  to  which  it  appeared  the  plaintiff 
Was'entitled,  was  to  compel  the  defendant  to  account  for  a  trust 
fund,  judgment  was  given  for  the  defendant.  Bishop  V.  llough- 
ton,  1  lv  D.  Smith.  566  ;  Hoitt  v.  Harvey,  21  How.  Pr.  382;  S.  C, 


144  PLEADINGS. 


13  Abb.  332.  When  a  complaint  prayed  that  a  deed  might  be  set 
aside,  and  also  for  such  other  and  further  relief  as  may  be  agreea- 
ble to  equity  and  good  conscience,  it  was  held  that,  although  the 
deed  could  not  be  set  aside,  yet,  under  the  general  prayer,  the  court 
might  allow  its  reformation.  Grafton  v.  Eemson,  16  How.  Pr.  32. 
A  prayer  for  a  judgment  of  the  amount  claimed  can  not  be  united 
in  the  same  complaint  with  one  for  a  judicial  determination  on  the 
validity  of  an  assignment  of  property  made  by  the  defendant. 
Reubens  v.  Joel,  13  N.  Y.  488 ;  S.  C,  2  Duer,  530.  But  if  the  de- 
fendant answers,  the  demand  for  relief  in  the  complaint  becomes 
immaterial.  Marquat  v.  Marquat,  12  N'.  Y.  336  ;  Emery  v.  Pease, 
20  N.  Y.  62.  Yet,  when  the  summons  and  demand  of  relief  in  the 
complaint  is  for  a  remedy  at  law  only,  it  renders  equitable  relief 
so  far  inconsistent  with  the  case  made  by  the  complaint  as  to  pre- 
vent the  plaintiff  having  equitable  relief,  although  upon  the  evi- 
dence he  might  have  maintained  an  action  for  such  relief.  Towle 
v.  Jones,  1  Rob.  87 ;  S.  C,  19  Abb.  449 ;  Eyder  v.  Jenney,  2  Eob. 
56,  65. 

These  authorities  show  that  the  pleader  must  take  great  care  in 
framing  hio  petition  ;  and,  if  his  case  present  a  case  for  either  one 
of  two  remedies  or  reliefs,  he  must  decide  whether  he  will  go  for 
relief  at  law  or  in  equity,  and  that  he  is  bound  to  the  specific  relief 
demanded.  This  is  reasonable.  A  party  should  not — can  not  be 
permitted  to  make  up  an  issue  in  a  legal  action,  and  failing  in  that, 
be  permitted  to  take  a  decree  for  equitable  relief,  because  he 
might  originally  have  obtained  relief  in  that  aspect  of  the  case. 

Objection  to  the  relief  demanded  must  be  taken  by  motion. 
Durant  v.  Gardner,  10  Abb.  445;  S.  C,  19  How.  Pr.  94;  Moses  v. 
Walker,  2  Hilt.  536  ;  Walton  v.  Walton,  20  How.  Pr.  347 ;  Eed- 
mond  v  Dana,  3  Bosw.  615  ;  Andrews  v.  Shaffer,  12  How.  Pr.  441 ; 
People  v.  Mayor  of  New  York,  28  Barb.  240 ;  17  How  Pr.  56 ;  8 
Abb.  7 ;  Hartford  v.  Bennett,  18  Ohio  St.  441  ;  Bass  v.  Comstock, 
38N.Y.  21. 

The  Statement  of  more  than  one  Cause  of  Action. 
Each  cause  of  action  must  be  separately  stated.  This  rule  pre- 
cludes duplicity.  Each  count  must  be  complete  and  distinct ;  and, 
if  two  causes  of  action,  in  a  case  at  law,  are  blended  in  one  state- 
ment, it  is  bad  on  demurrer  under  our  code,  which  has  itself  re- 
quired this  distinct  statement  to  be  made.  Duplicity  is  a  direct 
violation  of  the  code.  Such  a  complaint  presents  an  illegal  look 
on  its  face,  and  hence  must  be  held  bad  by  the  court.     And  such 


PLEADINGS.  145 


are  the  last  decisions  in  New  York,  though  there  has  been  much 
conflict  in  the  cases.  Van  Naniee  v.  People,  9  Pr.  198;  Straus  v. 
Parker,  9  Pr.  342.  Some  courts  in  that  State  hold  it  must  be 
reached  on  motion ;  but  the  Court  of  Appeals,  in  Cahoon  v.  Bank 
of  Utica,  3  Selden,  486,  recognized  this  practice.  The  question  in 
that  case  was  one  of  duplicity,  raised  on  demurrer ;  and  no  objec- 
jection  being  taken  to  the  practice,  the  court  proceeded  to  decide 
the  case,  affirming  the  judgment  below.  Whereas,  if  the  question 
could  not  have  been  raised  on  demurrer,  then  the  demurrer  was  a 
nullity,  and  the  judgment  one  by  default,  thus  presenting  no  ques- 
tion for  the  Court  of  Appeals.  But  the  court  proceeded  to  decide 
the  case,  on  the  ground  that  the  judgment  must  be  reversed,  if  the 
petition  contained  two  causes  of  action  in  a  single  count.  The  dis- 
senting opinion  of  Jewett,  J.,  shows  this  to  have  been  the  under- 
standing of  the  court.  The  necessity  of  having  each  stated  by 
itself  in  a  different  count  is  as  imperative,  under  the  code,  as  under 
the  former  practice.  By  stating  each  separately,  confusion  is 
avoided,  a  definite  issue  can  be  framed  on  each  cause  of  action,  and 
it  can  be  more  conveniently  tried.  There  should  be  as  many  sep- 
arate statements  as  there  are  causes  of  action.  Such  is  the  language 
of  Jewett,  J.,  in  which  the  majority  of  the  court  must  have  agreed, 
since  they  were  forced  to  hold  that  there  was  in  fact  but  one  cause 
of  action  stated  in  the  petition,  and  that  was  a  cause  of  action 
founded  on  principles  of  equity.  This  case,  therefore,  seems  to 
settle  what  is  good  sense,  that  a  petition  drafted  right  in  the  teeth 
of  the  code  should  be  held  bad  on  demurrer.  The  other  cases  on 
this  question  will  be  found  under  the  head  of  demurrer. 

The  old  rules  of  pleading  as  to  duplicity  are  just  as  important, 
then,  as  ever.  The  separate  statement  of  a  cause  of  action,  says 
Jewett,  J.,  and  the  separate  counts  of  a  declaration,  are  equivalent 
expressions.  We  must  go,  then,  to  the  works  on  pleading  in  com- 
mon-law actions,  and  to  similar  works  on  pleadings  in  chancery, 
to  ascertain  what  is  or  what  is  not  duplicity.  Duplicity  at  law  is 
dffierent  from  what  it  is  in  chancery.  At  law  there  may  be  two 
causes  of  action  growing  out  of  the  same  facts,  yet  each  must  be 
separately  stated  ;  while  in  equity  the  whole  case  maybe  stated, 
and  each  of  the  grounds  of  recovery,  and  if  either  or  all  are 
found  to  be  proved,  the  plaintiff  is  entitled  to  recover.  This  is 
not  duplicity  or  multifariousness  in  equity  pleading.  There  is 
here  but  one  case,  though  a  recovery  may  be  predicated  on  vari- 
ous grounds.  As  where  a  deed  is  sought  to  be  set  aside,  the 
VOL.  i — 10 


146  DEMURRER. 


plaintiff  may  allege  that  he  was  an  infant  at  the  time,  that  it  was 
obtained  by  misrepresentation,  was  without  consideration,  though 
one  was  supposed  to  have  been  received.  In  other  words,  the  deed 
is  the  thing  in  question,  and  he  may  state  all  the  grounds,  how- 
ever numerous,  on  which  he  rests  his  claim  to  relief.  At  law  he 
would  have  to  state  each  of  these  grounds  in  a  separate  count,  as 
each  of  them  would  constitute  a  separate  cause  of  action ;  and  un- 
less cases  depending  upon  equitable  principles  are  to  be  governed 
as  heretofore  in  courts  of  equity,  each  of  these  grounds  must  be 
separately  stated,  since,  abstractly  and  strictly  considered,  each 
one  of  them  constitutes  a  cause  of  action.  But  it  is  supposed  that 
cases  depending  on  principles  of  equity  are  to  be  stated  by  Mid- 
ford,  Cooper,  and  Story,  and  not  by  Chitty  and  Gould  and  Ste- 
vens. Unless  this  is  the  case  it  will  be  impossible  to  administer 
the  law  as  recognized  in  courts  of  equity  under  the  code.  Fully 
aware  of  this  difficulty,  from  a  two  years'  experience  under  the 
code,  as  well  as  from  the  evidence  of  its  workings  in  the  decisions 
of  New  York,  we  have  all  through  claimed  that  this  distinction 
must  be  kept  up ;  facts  in  each  class  of  cases  must  be  stated  ac- 
cording to  the  law  formerly  governing  the  jurisdiction  to  which 
they  respectively  appertained.  Such,  too,  we  believe,  is  the  gen- 
eral opinion  with  the  intelligent  portion  of  the  profession. 


CHAPTER  XL 


DEMUEEEE. 


Sec.  87.     The  defendant  may  demur  to  the  petition  only  when 
it  appears  on  its  face,  either : 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  the  subject  of  the  action. 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

3.  That  there  is   another  action   pending   between   the  same 
parties  for  the  same  cause. 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

5.  That  several  causes  of  action  are  improperly  joined. 

6.  That  the  petition  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 


DEMURRER.  147 


Sec.  88.  The  demurrer  shall  specify  distinctly  the  grounds  of 
objection  to  the  petition.  Unless  it  do  so,  it  shall  he  regarded  as 
objecting  only,  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Sec  89.  When  any  of  the  defects  enumerated  in  section  87 
do  not  appear  upon  the  face  of  the  petition,  the  objection  may 
be  taken  by  answer;  and  if  no  objection  be  taken  either  by 
demurrer  or  answer,  the  defendant  shall  be  deemed  to  have 
waived  the  same,  except  only  the  objection  to  the  jurisdiction  of 
the  court,  and  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Sec  90.  When  a  demurrer  is  sustained  on  the  ground  of  mis- 
joinder of  several  causes  of  action,  the  court,  on  motion  of  the 
plaintiff,  shall  allow  him,  with  or  without  costs,  in  its  discretion,  to 
file  several  petitions,  each  including  such  of  said  causes  of  action 
as  might  have  been  joined;  and  an  action  shall  be  docketed  for 
each  of  said  petitions,  and  the  same  shall  be  proceeded  in  without 
further  service. 

Sec  91.  The  defendant  may  demur  to  one  or  more  of  the  sev- 
eral causes  of  action  stated  in  the  petition,  and  answer  as  to  resi- 
due.    2  S.  &  C.  973  ;  6  Ohio  St.  473,  607,  611 ;  7  lb.  239. 


The  above  are  the  provisions  of  the  code  in  regard  to  demurrers 
to  the  petition.  The  grounds  of  demurrer  are  pointed  out  in  the 
various  subdivisions  of  section  87.  But  it  is  first  to  be  remarked 
that  all  the  defects  here  enumerated  must  appear  on  the  face  of  the 
petition,  in  order  that  the  objection  can  be  made  by  demurrer;  as 
is  manifest  by  the  office  of  a  demurrer,  and  also  from  the  language 
of  section  89.  Burrows  v.  Miller,  5  Pr.  51.  If  the  objection  does 
not  appear  on  the  face  of  the  petition,  the  fact  necessary  to  raise 
the  question  may  be  set  up  in  the  answer.  Hornfager  v.  Horn- 
fager,  1  Code,  N.  S.  412. 

The  next  observation  of  a  general  character  is,  that  every  de- 
murrer must  be  special,  and  set  out  some  one  of  the  causes  enu- 
merated in  the  said  section  87.  Every  objection,  save  that  of  juris- 
diction, is  waived  unless  specifically  stated  in  the  demurrer.  Such 
is  the  purport  of  section  88;  for  it  provides  that  all  general  de- 
murrer* shall  be  considered  as  demurrers  only  for  the  cause  stated 
in  subdivision  ij.  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.     Hind  v.  Tweedle  et  al.,  7  Pr.  278. 

The  specifical  ion  is  definite  enough,  if  it  states  one  of  the  causes 
enumerated  in  the  section  and  in  the  language  of  the  subdivision. 


148  DEMURRER. 


On  this  point,  there  has  been  some  conflict  of  opinion  in  New 
York,  though  the  weight  of  authority  is  in  favor  of  this  view 
of  the  code.  Swift  v.  De  Witt,  3  Pr.  280-284  ;  Durkee  v.  Saratoga 
&  Wash.  E.  E.  Co.,  4  Pr.  226  ;  Hyde  v.  Conrad,  5  Pr.  112  ;  Noxon  v. 
Bentlcy,  7  Pr.  316.  Hand,  J.,  says  :  u  I  know  it  has  been  doubted 
whether  a  general  demurrer  is  now  available  ;  but  where  no  valid 
cause  of  action  is  alleged,  I  have  no  doubt  it  is  fatal  in  every  stage 
of  the  proceeding  in  which  the  question  can  properly  arise."  Our 
code,  in  section  88,  provides,  in  fact,  for  a  general  demurrer,  on 
the  ground  stated  in  subdivision  6.  In  this  respect  it  differs  from 
the  New  York  code. 

A  demurrer  may  be  to  the  whole  petition,  or  to  any  one  of  the 
causes  of  action  stated  in  it.  Sec.  91.  And  if  the  demurrer  be  to 
the  whole  of  a  petition,  containing  several  causes  of  action,  it  must 
be  overruled,  if  either  one  of  the  causes  of  action  is  sufficient. 
Cooper  v.  Clason,  1  Code,  N.  S.  347 ;  1  Denio,  414. 

The  demurrer  must  state  to  what  part  of  the  petition  it  is  in- 
tended to  object,  where  the  petition  contains  more  than  one  count; 
so  it  may  be  filed  to  a  part  of  the  causes  of  action  stated,  while  an 
answer  may  be  put  in  as  to  the  other  ;  but  both  a  demurrer  and  an 
answer  can  not  be  put  in  to  the  same  matter.  The  answer  would 
be  held  to  overrule  the  demurrer. 

A  demurrer  is  only  proper  where  the  ground  of  it  appears  on  the 
face  of  the  complaint.  Getty  v.  Hudson  Eiver  E.  E.  Co.,  8  How. 
Pr.  177 ;  Wilson  v.  Mayor  of  New  York,  15  How.  Pr.  500 ;  S.  C,  6 
Abb.  6  ;  4  E.  D.  Smith,  675  ;  Coe  v.  Beckwith,  31  Barb.  339  ;  S.  O, 
19  How.  Pr.  398 ;  10  Abb.  296. 

A  demurrer  admits  all  relevant  facts  that  are  well  pleaded,  but 
not  conclusions  of  law.  Hall  v.  Bartlett,  9  Barb.  297 ;  Acome  v. 
Am.  Min.  Co.,  11  How.  Pr.  24.  A  demurrer  continuing  upon  the 
record  is  an  admission  of  the  facts  stated  in  the  pleading,  not  only 
for  the  purpose  of  argument,  but  as  evidence  on  the  trial.  Cutler 
v.  Wright,  22  N.  Y.  472.  The  demurrer  in  this  case  had  been  over- 
ruled, and  not  withdrawn.  No  rejoinder,  then,  became  neces- 
sary to  a  reply,  but  it  was  taken  as  denied ;  this  demurrer  over- 
ruled and  not  withdrawn,  seems  to  have  been  held  to  admit  the 
truth  of  reply,  though  no  denial  to  it  was  required.  I  should  say 
that,  the  demurrer  overruled,  the  reply  stood  as  if  it  had  never 
been  interposed.  It  was  not  the  object  of  the  demurrer  to  admit 
the  truth  of  the  reply,  but  to  test  its  legal  sufficiency ;  its  legal 
sufficiency  having  been  sustained,  then  the  question  came  up  on 
the  statutory  denial  of  its  truth.     I  think  the  reasoning  of  the 


DEMURRER.  149 


court  is  inconclusive  and  unsatisfactory.  Under  our  present  prac- 
tice, that  a  party  can  save  a  question  raised  on  the  pleadings, 
though  he  answer  or  reply  over,  no  such  question  can  arise,  when 
the  party  excepts  to  the  ruling  of  the  court  in  sustaining  the  de- 
murrer. Davies,  J.,  says  :  "  Section  155  of  the  code  provides  that, 
if  a  reply  of  the  plaintiff  to  any  defense  set  up  by  the  answer  of 
the  defendant  be  insufficient,  the  defendant  may  demur  thereto, 
and  shall  state  the  grounds  thereof.  By  section  168  of  the  code,  as 
it  stood  in  1851,  every  material  allegation  of  new  matter  in  the  an- 
swer, not  specifically  controverted  by  the  reply,  shall,  for  the  pur- 
poses of  the  action,  be  taken  as  true.  But  the  allegation  of  new 
matter  in  a  reply  shall  not,  in  any  respect,  conclude  the  defendant, 
who  may,  on  the  trial,  countervail  it  by  proofs,  either  in  direct  de- 
nial or  by  way  of  avoidance.  When,  therefore,  new  matter  was 
set  up  in  a  reply  under  section  153,  the  defendant  had  two  ways 
to  meet  it.  First,  if  he  deemed  it  insufficient  to  avoid  the  defense 
interposed  by  him,  he  could  demur  thereto  as  authorized  by  sec- 
tion 155  ;  and  if  he  wished  to  controvert  the  facts  so  set  up,  he  was 
not  concluded  by  them  on  the  trial,  but  the  plaintiff  would  be  left 
to  prove  them,  and  the  defendant  would  then  be  at  liberty  to  coun- 
tervail them  by  proofs,  either  in  direct  denial  or  by  way  of  avoid- 
ance. If  he  elected  to  admit  the  facts  stated  in  the  reply,  and 
claim  that  they  were  insufficient  in  law  to  repel  the  defense  inter- 
posed by  him,  the  means  of  doing  that  were  provided  by  section 
155.  .  .  .  The  defendant  in  this  case  elected  to  rely  upon  the 
rights  secured  to  him  by  section  155,  and  interposed  a  demurrer. 
It  is  well  settled  that  a  demurrer  admits  the  facts  pleaded,  and 
merely  refers  the  question  of  their  legal  sufficiency  to  the  decision 
of  the  court.  1  Chit.  PI.  700.  After  judgment  passed  for  the 
plaintiff  on  the  demurrer,  no  further  issue  of  fact  remained  to  be 
tried  as  to  the  matter  set  up  in  the  pleading  demurred  to." 

The  error  in  this  reasoning  lies  in  this:  Under  the  old  practice 
a  reply  had  to  be  met  by  a  rejoinder,  either  denying  its  truth  or 
avoiding  its  effect  by  new  matter.  If,  then,  a  demurrer  was  over- 
ruled to  a  declaration,  plea,  or  reply,  the  petition,  answer,  or  reply 
was  taken  to  be  true,  unless  met  by  a  denial  on  the  part  of  the  ad- 
verse party.  But  under  the  code  no  rejoinder  was  required  ;  the 
reply  was  held  to  be  denied.  When,  therefore,  the  demurrer  was 
overruled,  the  statute  creates  the  denial  and  supplies  the  avoid- 
ance without  any  pleading  whatever.  The  demurrer  is  resorted 
to,  not  a»  a  pleading  of  facts,  but  as  a  pleading  asking  the  court  if, 
admitting  the  facts  to  be  true,  they  are  in  law  sufficient  to  avoid 


150  DEMURRER. 


the  defense  set  up  in  the  answer;  for  the  purpose  of  settling  that 
legal  proposition,  the  facts  are  taken  to  be  true:  but  that  question 
settled,  as  to  their  legal  sufficiency,  then  comes  up  the  truth  of  the 
reply  on  the  statutory  rejoinder  without  pleading.     Under  the  old 
practice,  if  the  party  did  not  reply  over,  after  the  overruling  of  a 
demurrer,  the  facts  were  taken  to  be  true,  not  because  of  the  de- 
murrer, but  because  no  rejoinder  was  interposed  denying  or  avoid- 
ing the  reply.     So  now,  when  a  demurrer  to  a  petition  or  answer 
is  overruled,  the  ease  stands  on  default,  and  judgment  is  rendered, 
not  on  the  admission  of  the  demurrer,  but  on  the  failure  of  the 
party  to  answer  or  reply.     It  will  thus  be  seen  that  this  reasoning 
of  Judge  Davies  does  not  apply  to  the  overruling  of  a  demurrer  to 
a  reply,  since  without  further  plea  there  is  not   default.     Final 
judgment  might  be  given  on  a  demurrer  if  the  party  did  not  ob- 
tain leave  to  plead  over.     If  he  did  not  do  that,  the  case  stood 
admitted  without  regard  to  the  demurrer.     In  my  opinion,  there- 
fore, when  a  demurrer  to  a  reply  is  overruled,  the  case  stands  for 
trial,  as  though  no  demurrer  had  been  interposed.    If  this  is  not  the 
case,  and  the  court  refuse  leave  to  withdraw  the  demurrer,  the  party 
is  concluded  when  his  object  was  to  test,  not  the  truth,  but  the  suf- 
ficiency of  the  reply.     Section   136  of  Ohio   code  provides   that 
"  upon  a  demurrer  being  overruled,  the  party  who  demurred  may 
answer  or  reply  if  the  court  is  satisfied  that  he  has  a  meritorious 
claim  or  defense,  and  did  not  demur  for  delay."     It  will  thus  be 
seen  that  in  such  a  case  the  party  is  in  the  power  of  the  court,  the 
court  being  satisfied  he  has  a  meritorious  claim  or  defense.    How  is 
the  court  to  ascertain  this?     Is  it  to  try  the  case  in  advance?     It 
must,  if  it  is  to  be  satisfied  of  such  a  claim  or  defense.     It  is  not, 
therefore,  safe  to  demur  to  a  reply.     In  our  practice,  a  demurrer  is 
merely  for  the  purpose  of  testing  the  law  of  the  reply  ;  but  under 
this  New  York  ruling,  the  party  safely  for  himself  can  not  demur : 
he  must  raise  his  legal  proposition  by  objecting  to  the  admission 
of  any  evidence  under  the  reply,  because  in  law  it  is  no  defense, 
if  proved.     This  practice  is  admissible,  and  under  such  a  holding 
the  only  safe  one  for  the  party. 

A  demurrer  must  be  neither  to  a  part  of  an  entire  cause  of  ac- 
tion, nor  a  paragraph,  for  a  part  of  a  pleading  can  not  be  expunged 
on  demurrer  unless  it  amounts  to  a  separate  cause  of  action,  and  is 
so  stated.     Lord  v.  Vreeland,  15  Abb.  122  ;  S.  C,  24  How.  Pr.  316. 

Where  the  complaint  contains  in  form  but  one  cause  of  action, 
but  sets  forth  facts  constituting  two  or  more  causes  of  action,  the 
remedy  is  not  by  demurrer,  but  by  a  motion  either  to  strike  out 


DEMURRER.  151 


all  but  one  cause  of  action,  or  to  compel  the  plaintiff  to  elect  on 
which  he  will  proceed.  Cheney  v.  Fisk,  22  How.  Pr.  236.  In  such 
case,  if  one  of  the  causes  of  action  can  not  be  sustained  for  want 
of  proper  parties  defendant,  it  should  be  treated  as  irrelevant  or 
immaterial  Lord  v.  Vreeland,  24  How.  Pr.  316 ;  S.  C,  15  Abb. 
122;  13  Abb.  195. 

Where  the  complaint  prays  for  relief  beyond  what  the  facts  al- 
leged therein  authorize,  the  remedy  is  not  by  a  demurrer,  but  by 
a  motion  to  strike  out  such  parts  of  the  prayer  as  are  not  thus 
authorized.  Lord  v.  Vreeland,  13  Abb.  195 ;  Eoeder  v.  Ormsby, 
13  lb.  334;  S.  C,  22  How.  Pr.  270.  And  when  the  special  dam- 
ages claimed  are  not  distinctly  and  definitely  set  forth,  the  remedy 
is  by  motion  and  not  by  demurrer.     Hewit  v.  Mason,  24  lb.  366. 

Bo  a  demurrer  will  not  be  sustained  to  an  answer  to  a  petition 
seeking  equitable  relief  which  modifies  the  plaintiff 's  right  to  relief, 
or  entitling  the  defendant  to  any  counter  relief  which  he  asks  for. 
18  Ohio  St.  490. 

One  party  can  not  demur  to  a  petition  on  the  ground  that  an- 
other party  has  been  improperly  joined  with  him  as  a  defendant. 
Weightman  v.  Bumcratz,  12  Ohio  St.  273. 

A  pleading  under  the  code,  which  sets  up  two  or  more  causes  of 
action,  or  two  or  more  defenses,  but  omits  to  separately  state  and 
number  them,  is  not  for  that  reason  demurrable.  The  irregularity 
can  only  be  reached  by  motion.  Hartford  v.  Bennett,  10  Ohio  St. 
441;  S.  P.,  Bass  v.  Comstock,  38  N.  Y.  21.  Nor  is  the  omission  to 
state  distinct  causes  of  action,  which  may  be  joined  in  separate 
counts,  a  misjoinder  of  action  under  the  code  so  as  to  be  reached 
on  demurrer.     Bass  v.  Comstock,  supra. 

"Where  a  complaint  may  reasonably  show  the  averment  of  a 
good  cause  of  action,  it  is  not  to  be  held  bad  on  demurrer  because 
its  language  is  susceptible  of  a  construction  excluding  any  such 
cause.  The  court  will  adopt  a  rational  construction  rather  than 
one  which  makes  the  complaint  an  absurdity.  Olcott  v.  Carroll, 
39  N.  Y.  436.  Woodruff,  J. :  "  The  language  is  clearly  susceptible 
of  this  interpretation  ;  and  if  so,  that  interpretation  should  be  given 
in  preference  to  one  which  leads  to  the  absurdity  of  construing  the 
complaint  as  an  averment  that  the  defendant  has  received  moneys 
exclusively  liis  own,  in  which  the  plaintiff  had  no  interest.  If  the 
allegation  admits  of  the  latter  interpretation,  it  may  be  said  to  be 
ambiguous,  and  that  is  all. 

"It  is  not  true  that,  under  the  code,  it'  there  be  uncertainty  in 
respect  to  the  nature  of  the  charge,  it  is  to  be  construed  strictly 


152  DEMURRER. 


against  the  pleader.  By  section  150,  in  the  construction  of  a 
pleading,  for  the  purpose  of  determining  its  effect,  its  allegations 
must  be  liberally  construed  with  a  view  to  substantial  justice. 
And  by  section  160,  when  the  allegations  of  a  pleading  are  so  in- 
definite or  uncertain  that  the  precise  nature  of  the  charge  is  not 
apparent,  the  court  may  require  the  pleading  to  be  made  definite 
and  certain  by  amendment."  It  would,  therefore,  seem  that  if 
neither  court  nor  opposite  party  objected  to  a  pleading  as  uncertain 
and  indefinite,  a  court  of  error  should  give  such  a  construction  to  the 
pleading  as  will  sustain  the  judgment. 

A  demurrer  may  assign  as  many  grounds  of  demurrer  as  the 
pleader  may  desire.  Harrison  v.  Hogg,  2  Ves.  323  ;  Jones  v.  Frost, 
3  Madd.  1.  So  he  may  file  as  many  separate  demurrers  to  sep- 
arate and  distinct  portions  of  the  complaint,  answer,  or  reply,  as 
there  are  separate  causes  of  action  or  defenses  or  reply.  In  such 
case  each  demurrer  must  be  decided  by  itself.     1  Barb.  Ch.  107. 

So  a  demurrer  must  state  the  specific  objections  which  the 
pleader  has  to  the  pleadings,  but  the  grounds  of  demurrer  may 
be  stated  in  the  language  of  this  section  relating  to  demurrers. 
Viburt  v.  Frost,  3  Abb.  120;  Hobart  v.  Frost,  5  Duer,  672.  All  ob- 
jections to  the  pleading,  except  those  specified  in  the  demurrer,  are 
waived.  Malone  v.  Stillwell,  15  Abb.  421 ;  Nellis  v.  De  Forrest,  16 
Barb.  61 ;  Conn.  Bank  v.  Smith,  9  Abb.   168;  S.  C,  17  How.  487. 

When  a  demurrer  does  not  go  to  the  whole  complaint,  it  must 
distinctly  point  out  the  part  it  is  intended  to  cover.  Jarvis  v. 
Palmer,  11  Paige,  650 ;  Stuyvesant  v.  Mayor,  etc.,  of  New  York, 
11  lb.  415;  Kuypers  v.  Eeformed  Dutch  Church,  6  Paige,  570. 
When  a  demurrer  purports  in  its  commencement  to  be  a  demurrer 
to  the  whole  answer,  but  afterward  distinctly  sets  forth  that  part 
of  the  answer  to  which  it  was  to  apply,  it  was  held  that  in  effect 
the  demurrer  was  only  to  the  part  pointed  out,  and  not  to  the 
whole  pleading.     Matthews  v.  Beach,  8  N.  Y.  173. 

When  the  demurrer  is  to  several  causes  of  action  or  defense,  and 
one  of  them  is  good,  the  demurrer  must  be  overruled,  as  it  must 
be  wholly  sustained  or  fail  altogether.  Separate  demurrer  should 
be  plead  to  each  count.  Peabody  v.  Wash.  Mut.  Ins.  Co.,  20  Barb. 
339 ;  People  v.  Mayor,  etc.,  of  New  York,  17  How.  Pr.  57 ;  S.  C, 
28  Barb.  240.  When  the  complaint  showed  a  separate  cause  of  ac- 
tion against  each  defendant,  but  not  a  joint  one,  a  joint  demurrer 
was  sustained.  Hess  v.  B.  &  N.  Falls  E.  E.  Co.,  29  Barb.  391.  So 
where  in  an  equity  suit  the  petition  shows  a  cause  of  action  against 
a  part  of  the  defendants,  and  not  as  to  the  others,  the  latter  may 


DEMURRER.  153 


demur.  Eldridge  v.  Bell,  12  How.  Pr.  547;  Phillips  v.  Hagadon, 
12  lb.  17.  A  joint  demurrer  will  lie  for  the  misjoinder  of  parties 
plaintiff,  in  the  non-joinder  of  the  proper  parties  defendant,  but 
not  for  the  misjoinder  of  parties  defendant.  Brownson  v.  Gifford, 
8  How.  Pr.  389,  396,  397 ;  Woodbury  v.  Sackrider,  2  Abb.  402 ; 
Emery  v.  Pease,  20  N.  Y.  62.  Upon  a  general  demurrer  to  an  an- 
swer containing  several  distinct  grounds  of  defense,  the  demurrer 
may  be  overruled  if  either  one  of  the  defenses  are  sufficient  to  bar 
the  action.     Shroyer  v.  Bichmond  &  Staley,  16  Ohio  St.  455. 

Where  a  demurrer  and  answer  are  filed  to  the  same  pleading, 
the  pleader  should  be  put  to  elect  which  defense  he  will  abide  by. 
Davis  v.  Hines,  6  Ohio  St.  473.  Does  not  an  answer  waive  the 
benefit  of  a  demurrer  filed  before  or  at  same  time  ?  Such  was  the 
old  practice,  and  there  is  no  reason  why  it  should  not  be  now  ap- 
plied. An  answer  to  the  merits  admits  that  there  is  no  ground  for 
a  demurrer.  The  answer  is  inconsistent  with  the  demurrer,  and  in 
fact  overrules  it. 

Subdivisions  1  and  2. — The  grounds  here  stated  need  no  illustra- 
tion as  a  question  of  pleading  or  practice.  In  New  York  it  has 
been  decided  that  where  one  sues  as  administrator  he  need  not 
make  proferts  of  his  letters  of  administration ;  it  is  enough  that  his 
representative  character  is  stated  in  his  petition.  Willis  Ex'r  v. 
Webster,  9  Pr.  251. 

"  That  the  court  has  no  jurisdiction  of  the  person,"  means  that 
the  person  is  not  subject  to  the  jurisdiction  of  the  court;  not  that 
the  suit  has  been  irregularly  commenced.  Nones  v.  Hope  Mut. 
Life  Ins.  Co.,  5  How.  96 ;  S.  C,  3  Code,  161 ;  8  Barb.  541.  An  ob- 
jection to  the  jurisdiction  of  the  court  can  only  be  taken  by 
demurrer  when  that  defect  appears  on  the  face  of  the  petition. 
Wilson  v.  Mayor,  etc.,  of  New  York,  6  Abb.  6 ;  S.  O,  15  How.  500 ; 
Eoenig  v.  Nott,  8  Abb.  6 ;  S.  O,  2  Hilt.  323. 

The  capacity  of  the  plaintiff  to  sue  is  independent  of  the  facts 
constituting  the  cause  of  action;  therefore,  that  question  can  not  be 
raised  by  demurrer  under  the  sixth  subdivision.  Bank  of  Louis- 
ville v.  Edwards,  11  How.  216;  Myers  v.  Machado,  6  Abb.  198;  S.  O, 
14  How.  149;  Hobart  v.  Frost,  5  Duer,  672. 

When  the  plaintiff  sues  by  a  name  representing  no  person, 
natural  or  artificial,  the  objection  must  be  raised  by  motion,  not  by 
demurrer.  Bank  of  Havana  v.  Magee,  20  N.  Y.  355.  In  this  case, 
Cook  did  a  banking  business  in  the  name  of  the  Bank  of  Havana. 
No  object  ion  was  made   by  answer;  the  case  was  tried,  and  on  the 


154  DEMURRER. 


trial  the  fact  came  out.  The  court  held  this  objection  could  not  be 
reached  by  demurrer,  but  should  have  been  by  motion  or  answer, 
and  that  the  court  ought  to  have  on  the  trial  amended  the  record 
by  inserting  Cook's  name.  Where  a  petition  by  a  corporation  omits 
to  allege  tacts  showing  the  plaintiff's  capacity, and  the  defendant  de- 
murs for  the  sole  cause  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  he  can  not  avail  himself  of  the 
objection  that  the  plaintiff  has  not  capacity  to  sue.  Fulton  Fire  Ins. 
Co.  v.  Baldwin,  37  N.  Y.  648.  In  this  case,  the  plaintiff  did  not  state 
that  it  was  a  corporation,  and  the  court  held  that  the  objection  was 
waived  under  the  section  which  declares,  that  if  no  such  objection 
be  taken,  either  by  demurrer  or  answer,  the  defendant  shall  be 
deemed  to  have  waived  the  same,  excepting  only  the  objection  to 
the  jurisdiction  of  the  court,  and  the  objection  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action.  In  the 
case  of  The  Phoenix  Bank  v.  Donnell,  40  N.  Y.  410,  the  court  held 
that  where  the  petition  omitted  to  state  that  the  plaintiff  was  a  cor- 
poration duly  organized,  a  demurrer  to  the  petition  for  that  reason 
was  overruled  by  the  Court  of  Appeals  that  it  did  not  appear  on 
the  face  of  the  petition  that  the  plaintiff  was  not  a  corporation. 
This  decision  is  based  on  a  false  assumption.  The  fact  of  corpora- 
tion is  an  affirmative  fact.  No  body  of  persons  can  sue  in  other 
name  than  their  own  names,  unless  clothed  with  power  so  to  do  by 
an  act  of  legislation  :  hence,  the  name  of  the  Phoenix  Bank  was  no 
name,  unless  it  was  alleged  to  be  a  corporation ;  that  averment 
alone  can  give  it  the  right  to  sue,  and  the  absence  of  that  averment 
shows  on  the  face  of  the  petition  that  no  such  name  has  a  right  to 
sue,  or  standing  in  court.  The  rulings  in  Ohio,  I  believe,  have 
been  invariably  in  accordance  with  the  view  here  suggested.  In 
the  District  Court  of  Jackson  county,  it  was  some  years  since  so 
ruled,  and  that  ruling  has  been  followed  ever  since;  and  the  ruling 
is  right,  and  that  of  New  York  on  principle  wrong,  and  can  not  be 
sustained.  If  was  an  effort  to  avoid  reversing  a  judgment  by  a 
resort  to  hair  splitting  and  bad  logic.  That  case  is  doubted  by  M. 
Wait  in  his  notes  to  the  code. 

Subdivision  3. — The  pendency  of  one  action  in  one  State  has 
been  held  to  be  no  bar  to  a  subsequent  action  for  the  same  cause  in 
another  State.  Burrows  v.  Miller,  5  Pr.  51 ;  Brown  v.  Joy,  9  Johns. 
221 ;  Walch  v.  Durkin,  12  Johns.  99.  The  pendency  of  an  attach- 
ment in  one  State,  whereby  a  lien  on  property  is  acquired,  has 
been  held  a  bar  to  a  second  suit  in  another  State,  on  the  ground  of  a 


DEMURRER.  155 


satisfaction  created  by  the  lien  acquired.  A  levy  on  goods,  while 
undisposed  of,  has  been  held  satisfaction  of  a  judgment.  Embree 
v.  Hanna,  5  Johns.  101 ;  Wheeler  v.  Eaymond,  8  Cowen,  311.  This 
is,  however,  an  objection  which  can  very  seldom  appear  on  the 
face  of  the  petition. 

Where  an  action  for  a  partnership  accounting  was  commenced 
by  one  of  two  partners,  and  the  other  partner  subsequently  com- 
menced a  second  action  with  special  averments  and  prayer  for 
more  extended  relief  without  changing  the  nature  of  the  action,  it 
was  held  that  the  latter  action  could  not  be  sustained.  Ward  v. 
Gore.  37  How.  119.  The  defense  of  another  action  pending,  when 
available  as  established  by  law  before  the  code,  may  be  set  up  by 
demurrer,  when  it  shall  appear  on  the  face  of  the  petition,  and  by 
answer,  when  it  does  not  so  appear.  Burrows  v.  Hornfager,  1  Code, 
N.  S.  412;  S.  C.  6  How.  279. 

Subdivision  4. — The  defect  of  parties  must  be  settled  by  the  code 
regulating  parties.  A  demurrer  for  non-joinder  of  parties  is  well 
taken,  where  it  appears  that  the  court  can  not  determine  the  con- 
troversy before  it  without  prejudice  to  the  rights  of  others,  nor  by 
saving  those  rights.  Wallace  v.  Eaton,  5  Pr.  99.  If  persons  are 
made  plaintiffs  who  ought  not  to  have  been,  this  is  good  ground 
for  demurrer;  as  where  husband  was  joined  with  his  wife,  in  a  case 
where  she  ought  to  have  sued  without  her  husband,  and  by  her 
next  friend.  Brownson  and  wife  v.  Gifford  et  al.,  8  Pr.  389.  The 
joinder  of  unnecessary  parties  as  defendants  is  no  ground  of 
demurrer  on  the  part  of  any  one  but  the  party  himself.  The  other 
defendants  are  not  injured  by  his  presence,  lb. ;  Story's  Eq.  PL, 
sees.  509,  544.  The  failure  to  make  a  person  a  defendant,  who  is  a 
necessary  party  to  the  suit,  is,  however,  a  ground  of  demurrer.  lb. 
The  defendant  can  not  be  called  upon  to  answer  until  all  persons 
necessary  to  a  complete  and  final  determination  of  the  case  are 
before  the  court. 

An  improper  joinder  of  parties  plaintiff  is  not  a  subject  of  de- 
murrer. Allen  v.  City  of  Buffalo,  38  N.  Y.  280.  The  language 
of  the  code  is,  where  there  is  a  defect  of  parties  plaintiff  or  de- 
fendant.  It  seems  to  be  considered  that  defect  means  the  absence 
of  necessary  parties.  This  is  a  mere  dictum,  not  necessary  to  the 
decision  of  the  case.  It  was  not  made  by  demurrer,  only  at  the 
final  hearing  in  the  Court  of  Appeals.  u Defect  is,"  says  Webster,  in  his 
second  definition  of  the  word,  -'failing,  fault,  mistake,  imperfection 
in  moral  conduct,  or  in  judgment."     This  meaning  of  the  word  is 


156  DEMURRER. 


broad  enough  to  include  a  defect  in  making  too  many  parties.  To 
include  too  many  parlies  as  plaintiffs  is  surely  a  defect  in  the  pro- 
ved in^s.  as  much  as  if  there  was  an  absence  of  necessary  parties. 
How  is  the  question  to  be  reached,  if  parties  are  joined  as  plaint- 
ills  having  do  interest  in  the  case?  Is  a  party  to  be  permitted  to 
join  as  plaintiffs  whomsoever  he  chooses,  and  that  imperfection  in  his 
case  can  not  be  taken  advantage  of  on  demurrer,  where  the  defect 
is  patent  in  the  petition,  is  to  my  mind  a  strange  position.  The 
plaintiff  must  fail  in  his  case,  as  there  is  no  waiver  of  such  a  mis- 
take by  the  code  as  there  is  about  defendants. 

In  an  action  sounding  in  tort,  whei-e  there  appears  on  the  face 
of  the  petition  a  non-joinder  of  parties  plaintiff,  the  defendant 
should  take  advantage  of  the  defect  by  demurrer.  Omitting  to  do 
so,  he  waives  the  defect,  although  in  the  answer  it  is  insisted  that 
the  petition  should  be  dismissed  for  that  cause.  Zabriskie  v.  Smith, 
13  N.  Y.  322 ;  Merritt  v.  Walsh,  32  N.  Y.  685.  A  single  creditor 
may  commence  an  action  in  his  own  behalf  against  a  judgment 
debtor,  although  it  appears  that  there  are  other  creditors  who  are 
not  joined  as  plaintiffs.  It  is  no  ground  of  demurrer.  Hammond 
v.  Hudson  Eiver  Iron  and  Machine  Co.,  20  Barb.  378.  For  a  de- 
fect of  parties  plaintiff,  all  the  defendants  may  demur.  Brownson 
v.  Gifford,  8  How.  389.  Where  husband  and  wife  joined  in  an 
action  to  recover  debts  due  the  husband,  a  demurrer  was  sustained 
to  the  petition.  Dunderdale  v.  Gryines,  16  How.  195  ;  Avogadro  v. 
Ball,  4  E.  D.  Smith,  384 ;  Bartow  v.  Draper,  5  Duer,  130 ;  33  N.  Y.  43 

The  defect  of  parties  defendant,  for  which  a  demurrer  is  al- 
lowed, is,  that  there  are  too  few,  not  too  many.  Eichtmyer  v. 
Same,  50  Barb.  55 ;  Crosby  v.  Berger,  4  Edw.  Ch.  210 ;  Voorhis  v. 
Baxter,  17  N.  Y.  354;  Bank  of  Havana  v.  Magee,  "i0  N.  Y.  355. 
The  joinder  of  too  many  defendants,  where  there  is  no  misjoinder 
of  subjects,  is  not  ground  of  demurrer  of  any  one  of  them  against 
whom  the  petition  sets  forth  a  cause  of  action  ;  the  other  parties 
individually  and  separately  can  demur  on  the  ground  that  the 
petition  states  no  cause  of  action  or  ground  of  relief  against  them. 
N.  Y.  &  N.  H.  E.  E.  Co.  v.  Schuyler  et  al,  17  N.  Y.  592 ;  Manning 
v.  State  of  Nicaragua,  14  How.  517. 

A  misjoinder  of  parties  plaintiff,  when  apparent  upon  the  face 
of  the  complaint,  can  not  be  taken  advantage  of  except  by  de- 
murrer. Fisher  v.  Hall,  41  1ST.  Y.  416,  Daniels,  J.,  says:  "As 
tenants  in  common,  representing  less  than  the  aggregate  common 
interests  in  the  estate,  the  plaintiffs  probably  would  have  been 
unable  to  have  maintained  a  joint  action,  if  that  objection  had 


DEMURRER.  157 


been  taken  in  time.  Jackson  v.  Bradt,  2  Caine,  169,  174;  Malcom 
v.  Rogers,  5  Cowen,  188 ;  Cole  v.  Irvine,  6  Hill,  634,  638,  639. 
.But  as  the  facts  of  the  case  were  fully  stated  in  the  petition,  show- 
ing that  the  plaintiffs  did  not  represent  all  the  common  interests  in 
the  estate,  if  any  objection  was  intended  to  be  taken  to  their  right 
to  maintain  the  action  on  that  account,  it  should  have  been  pre- 
sented at  that  time.  By  answering  and  taking  issue  on"  the  case 
alleged,  this  objection  was  waived,  and  it  became  the  duty  of  the 
court  to  try  and  determine  the  issue  as  it  had  been  joined  by  the 
pleadings.  If  any  objection  existed  to  the  form,  in  which  the  ac- 
tion was  brought,  it  was  that  the  petition  contained  several  causes 
of  action  which  had  been  improperly  united.  And  that  should 
have  been  raised  hy  demurrer.  As  it  was  not,  it  was  waived 
within  the  express  language  of  section  148  of  the  code  [sec.  89 
of  Ohio  code]." 

In  the  case  of  Palmer  v.  Davis,  28  N.  T.  242,  it  is  somewhat  dis- 
cussed in  the  opinion  of  the  court  by  Marvin,  J.  He  says  ;  "One 
of  the  grounds  of  demurrer  allowed  by  the  code  (sec.  144)  is, 
that  'there  is  a  deject  of  parties  plaintiff  or  defendant.'"  This 
ground  does  not  reach  a  case  where  there  are  too  many  plaintiffs, 
or  too  many  defendants,  but  only  those  cases  in  which,  from  the 
statements  of  the  cause  of  action,  it  appears  that  there  are  parties 
omitted,  who  should  have  been  made  parties  plaintiff  or  defend- 
ant. It  is  the  same  as  non-joinder  of  a  necessary  party,  in  an 
action  at  law,  under  the  superseded  system,  or  the  omission  of  a 
necessary  party  in  a  suit  in  equity,  where  it  was  said  the  suit  was 
defective,  and  a  demurrer  could  be  interposed  for  a  want  of  parties; 
or  the  objection  could  sometimes  be  taken  in  the  answer,  or  raised 
on  the  hearing.  Now  this  objection  of  defect  of  parties  must  be 
taken  by  demurrer,  if  it  shall  appear  upon  the  face  of  the  petition. 
If  it  does  not  so  appear,  the  objections  may  be  taken  by  answer. 
Code,  sec.  147.  If  the  objection  of  this  defect  is  not  taken  by 
demurrer  or  answer,  the  defendant  shall  be  deemed  to  have  waived 
it.  Sec.  148.  The  language,  defect  of  parties,  was  taken  from 
the  equity  branch  of  the  law  as  administered  in  the  court  of  chan- 
cery, and  it  was  happily  chosen,  in  view  of  the  new  system.  It 
has  no  reference  to  the  misjoinder  of  parties  ;  nor  is  misjoinder  of 
parties  one  of  the  causes  of  demurrer  under  the  code.  As  we 
have  seen,  the  objection  of  defect  or  want  of  parties  can  not  now 
be  raised  on  the  hearing  or  trial,  not  having  been  raised  by  de- 
murrer or  answer,  and  being  deemed  waived.  But  it  is  provided 
in  the  code  (sec.  122),  that  "  when  a  complete  determination  of 


158  DEMURRER. 


the  controversy,  between  the  parties,  can  not  be  had  without  the 
presence  of  other  parties,  the  court  must  cause  them  to  be  brought 
in."  If  there  is  a  misjoinder  of  parties,  that  is,  if  the  facts  stated 
in  the  eomplaint  show  no  cause  of  action  against  the  defendants, 
in  favor  of  one  of  the  plaintiffs,  the  defendants  may  demur,  under 
subdivision  6  of  section  144,  as  to  such  plaintiff,  upon  the  ground 
that  the  complaint  does  not  state  tacts  sufficient  to  constitute  a 
cause  of  action,  and  as  to  such  plaintiff  the  complaint  will  be  dis- 
missed. And  so  as  to  one  of  the  defendants  against  whom  no 
cause  of  action  is  stated.  If  the  objection  is  not  raised  by  de- 
murrer, or  does  not  appear  in  the  complaint,  it  may,  of  course,  be 
raised  on  the  trial,  and  the  complaint  will  be  dismissed  as  to  the 
plaintiffs  in  whose  favor  no  cause  of  action  is  shown,  and  so  as  to 
the  defendants  against  whom  no  cause  of  action  is  shown.  By 
section  274,  "judgment  may  be  given  for  or  against  one  or  more  of 
several  plaintiffs  and  for  and  against  one  or  more  of  several  defend- 
ants." Now,  if  the  plaintiff  has  a  good  cause  of  action  against  one  or 
more  of  the  defendants,  he  is  not  to  be  dismissed  from  the  court  as  to 
him  or  them,  though  he  has  joined  one  or  more  defendants  against 
whom  he  had  no  cause  of  action.  So  if  one  is  joined  as  a  plaintiff, 
who  has  no  cause  of  action  in  connection  with  his  co-plaintiff,  the 
complaint,  as  to  him,  will  be  dismissed,  but  his  co-plaintiff  may,  if 
he  has  a  cause  of  action,  recover.  These  positions  are  now  well 
understood,  and  have  received  the  sanction  of  the  courts,  and  I 
may  add  that  I  have  always  regarded  these  provisions  of  the  code 
as  the  most  valuable  portions  of  it,  effecting  a  very  salutary 
reform  in  the  law  touching  parties  to  actions." 

Subdivision  5. — The  improper  joinder  of  causes  of  action  is  also  a 
ground  of  demurrer.  The  misjoinder  of  causes  of  action  in  the 
same  petition,  which  can  be  reached  on  demurrer,  is  the  union  of 
causes  of  action,  which  by  section  80  can  not  be  joined  in  the  same 
complaint ;  but  it  is  no  ground  of  demurrer  that  separate  causes 
of  action,  wThich  may  be  united  in  the  same  petition,  are  all  stated 
in  one  count,  and  not  separately,  as  required  by  the  code.  In  Good- 
ing v.  McAlister,  9  Pr.  123,  Welles,  J.,  says :  "  Several  causes  of 
action  may  be  united  in  one  complaint,  and  although  not  separately 
stated,  still  they  are  properly  united  in  the  complaint;  that  is  to 
say,  it  is  no  objection  that  they  are  united  in  the  same  complaint, 
but  the  objection  is  that  they  are  not  separately  stated.  They  may 
be  properly  united  but  improperly  stated.  What  I  mean  by  a  mis- 
joinder, is  the  union  in  one  complaint  of  causes  of  action  not  al- 


DEMURRER.  159 


lowed  by  section  167  (sec.  80,  Ohio  Code).  As  for  example,  a  cause 
of  action  upon  a  contract  with  one  for  an  injury  to  the  person." 
The  same  view  is  taken  of  the  code  by  Marvin,  J.,  in  Robinson  v. 
Judd,  9  Pr.  378,  and  by  Selden,  J.,  in  Benedict  v.  Seymour,  6  Pr- 
298 ;  while  Willard,  J.,  in  Durkee  v.  S.  &  W.  R.  E.  Co.,  4  Pr.  226  ; 
S.  P.,  Pike  v.  Van  Wormer,  5  Pr.  171 ;  and  Harris,  J.,  in  Getty  v. 
Hudson  River  R.  R.  Co.,  8  Pr.  179,  held  that  mere  duplicity  is  a 
good  ground  of  demurrer.  The  former  would  appear  to  be  the 
better  opinion  ;  misjoinder  and  duplicity  are  certainly  very  differ- 
ent. Duplicity,  which  is  the  union  of  two  or  more  causes  of  action 
in  one  count  properly  joined,  so  far  as  the  several  causes  of  action 
are  concerned,  can  be  reached  on  a  motion  to  strike  out  all 
but  one  as  redundant,  under  section  118  of  the  code.  Such  is  held 
to  be  the  true  practice  in  New  York,  as  will  be  seen  by  the  cases 
above  cited. 

And  this  is  the  view  of  the  law  as  heretofore  expounded.  It  is 
thus  stated  in  Gould's  PL,  chap.  4,  sees.  98,  99.  In  connection  with 
this  last  rule  it  is  proper  to  remark  that  misjoinder  of  causes  of 
action,  or  counts,  which  is  a  radical  fault,  is  essentially  different 
from  duplicity,  which  is  but  matter  of  form. 

Misjoinder  of  causes  of  action,  or  counts,  consists  in  joining  in 
different  counts  in  one  declaration  several  different  demands  which 
the  law  does  not  permit  to  be  joined  ;  to  enforce  several  distinct, 
substantive  rights  of  recovery ;  as  where  a  declaration  joins  a  count 
in  trespass  with  another  in  case  for  distinct  wrongs — or  one  count 
in  tort  with  another  in  contract. 

Sec.  99.  Duplicity  in  a  declaration  consists  in  joining,  in  one  and 
the  same  count,  different  grounds  of  action,  of  different  natures,  or 
of  the  same  nature,  to  enforce  only  a  single  right  of  recovery. 


The  code  speaks  of  causes  of  action  improperly  united ;  now  this 
necessarily  implies  causes  of  action  improperly  united  in  the  lan- 
guage of  the  code  ;  and  by  section  80  of  the  code,  we  learn  what 
causes  of  action  may  be  joined,  and  hence  what  causes  can  be  im- 
properly joined.  The  defendant  may  demur  to  the  petition  when 
several  causes  of  action  are  improperly  joined  ;  but  several  causes 
of  action,  which  may  bq  joined  in  the  same  petition,  are  not  im- 
properly joined,  because  they  are  all  stated  in  one  count ;  they  are 
improperly  stated,  not  improperly  joined.  The  opinion  of  Jewett, 
J.,  in  Cahoon  v.  Bank  of  Utica,  3  Selden,  486,  is  to  the  contrary, 
holding  that  duplicity  is  also  good  ground  for  a  demurrer. 


160  DEMURRER. 


Subdivision  G.— This  clause  is  equivalent  to  what  was  called  a 
general  demurrer  at  common  law.  Docs  the  petition  state  facts 
which  show  a  right  of  recovery  against  the  party  demurring? 
This  question  must  be  answered  either  affirmatively  or  negatively 
on  the  decision  of  every  demurrer  under  this  subdivision  of  the 
code;  and  it  must  be  answered  by  applying  the  law  to  the  facts 
stated,  and  in  that  way  testing  their  sufficiency.  It  is  sufficient,  as 
we  have  seen,  to  state  the  objection  in  the  words  of  this  subdivis- 
ion, that  the  petition  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  Where  there  are  more  than  one  cause  of  action 
set  forth,  the  sufficiency  of  each  count,  or  cause  of  action,  must  be 
tested  by  the  facts  contained  in  the  count ;  one  bad  count  can  not 
be  helped  out  by  facts  contained  in  another,  unless  there  is  such  a 
reference  in  the  one  to  the  other  as  makes  the  facts  referred  to  in 
the  other  count,  a  part  of  the  count  containing  the  reference. 
This  may  be  done  in  the  petition,  as  it  formerly  could  in  a  declara- 
tion, and  to  the  same  extent. 

Such  seem  to  be  the  only  grounds  on  which  a  demurrer  to  the 
petition  can  be  founded  ;  every  other  objection  must  be  taken  by 
motion  under  the  provisions  of  section  118  of  the  code.  By  that 
section  rebundant  and  irrelevant  matter  may  be  striken  out  on 
motion  ;  while  pleadings,  which  are  too  indefinite  and  unceitain  to 
indicate  the  precise  nature  of  the  charge,  may  be  required  to  be 
made  specific,  precise,  definite,  and  certain.  This  motion,  how- 
ever, implies  that  facts  enough  are  stated  to  show  a  liability  ;  but 
that  they  are  loosely  and  confusedly  stated.  If  they  are  so  uncertain 
that  the  court  can  give  no  meaning  to  them,  then  the  petition  is 
substantially  defective  and  open  to  a  demurrer. 

A  failure  to  demur  on  the  ground  that  the  petition  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  under  this  subdivis- 
ion 6,  is  not  a  waiver  of  the  objection,  nor  does  it  conclude  one's 
right  to  insist  on  it  in  any  stage  of  the  proceeding  and  on  error. 
Gould  v.  Glass,  19  Barb.  179,  186 ;  Montgomery  County  Bank  v. 
Albany  City  Bank,  7  N.  Y.  459 ;  Coffin  v.  Beynolds.  37  H".  Y.  640 ; 
Higgins  v.  Freeman,  2  Duer,  650  ;  Budd  v.  Bingham,  18  Barb.  494. 
So,  where  two  or  more  defendants  are  joined,  and  the  petition 
does  not  show  a  cause  of  action  against  some  of  them,  such  de- 
fendants may  avail  themselves  of  the  objection  on  the  trial.  Mont- 
gomery Co.  Bank  v.  Albany  City  Bank,  7  N.  Y.  459.  In  this  last  case 
Jewett,  J.,  says :  "Section  144  of  the  code  provides  for  a  demurrer 
to  a  complaint  in  six  distinct  cases,  and  section  148  provides  that, 
if  the  objection  is  not  taken  by  either  demurrer  or  answer,  the  de- 


DEMURRER.  161 


fendant  shall  be  deemed  to  have  waived  all  except  the  first,  which 
is  that  the  court  has  not  jurisdiction  of  the  person  of  the  defend- 
ant, or  the  subject  matter  of  the  action,  and  the  sixth,  which  is  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  The  defendants'  counsel  took  the  objection  on  the  trial, 
substantially  that  the  defendants  were  not  charged  by  the  com- 
plaint or  evidence  with  a  joint  liability  to  the  plaintiff  for  the  neg- 
lect, which  occasioned  the  loss  suffered.  The  objection  came  in 
time.  There  was  no  cause  of  action  shown  by  the  plaintiff  against 
the  Bank  of  the  State  of  New  York,  and,  therefore,  the  complaint 
as  against  it  should  have  been  dismissed.  The  result  is  the  judg- 
ment as  against  the  Albany  City  Bank  must  be  affirmed  with  costs, 
and  reversed  as  to  the  Bank  of  the  State  of  New  York,  and  the 
complaint  as  to  that  bank  dismissed,  with  costs  against  plaintiff." 

A  demurrer  under  this  subdivision  only  reaches  the  case  made 
in  the  petition,  or  defense  in  the  answer  ;  the  only  question  raised  by 
such  a  demurrer  is,  does  the  complaint,  on  its  face,  entitle  the 
plaintiff  to  the  relief  by  him  claimed  ?  Nor  is  it  material  whether 
the  relief  demanded  be  equitable  or  legal.  Under  this  assignment 
of  demurrer,  the  pleader  can  not  take  advantage  of  the  objection 
that  the  party  has  not  a  legal  capacity  to  sue,  or  that  there  is  a 
defect  of  parties,  or  a  misjoinder  of  causes  of  action. 

The  demurrer  puts  in  issue  on  this  ground  the  whole  petition, 
and  if  any  facts  necessary  for  the  plaintiff  to  prove,  in  order  to 
sustain  his  action,  are  not  stated,  a  demurrer  will  be  sustained. 
This  goes  to  the  law  of  the  case  made  in  the  petition.  To  sus- 
tain the  demurrer  under  this  head,  the  statement  of  the  facts  must 
be  such  that,  admitting  them  to  be  true,  the  court  is  in  law  au- 
thorized to  say  that  they  furnish  no  cause  of  action  against  the 
defendant  demurring.  One  defendant  may  demur,  if  the  petition 
shows  no  right  of  action  against  him,  though  there  may  be  against 
the  others.     37  N.  Y.  G40  ;  40  N.  Y.  410. 

Where  the  petition  shows  on  its  face  a  cause  of  action  barred  by 
the  statute  of  limitation,  it  is  not  error  to  sustain  a  demurrer  to  it. 
Comm'rs  v.  Andrews,  18 Ohio  St.  49;  Sturgis  v.  Burton,  8  Ohio  St.  215. 
The  reason  for  this  rule  in  Ohio  is  founded  upon  the  decision  of  the 
case  of  Hill  v.  Henry,  17  Ohio,  9,  in  which  it  was  decided  that  no  ac- 
tion could  be  sustained  on  a  claim  once  barred  ;  if  there  was  a  prom- 
ise to  pay  the  claim  after  the  bar,  it  was  a  new  contract  not  in 
writing,  and  the  action  must  be  founded  on  that  and  not  on  the 
original  claim.  The  bar  of  the  statuto  extinguishes  the  right  of 
action.     The  same  ruling  has  been  made  by  the  Supreme  Court  of 

VOL.  I — 11 


162  DEMURRER. 


Kansas,  in  the  case  of  Zane  v.  Zano,  5  Kansas,  134.  The  same  doc- 
trine is  stated  in  2  Van  Santvoord's  PI.  (2  ed.)  268,  269.  On  this  point 
of  demurring,  vide  Peoplo  v.  Mayor  N.  Y.,  8  Abb.  7 ;  S.  C,  28 
Barb.  240  ;  17  How.  56  ;  Sinclair  v.  Fitch,  3  E.  D.  Smith,  677  ;  Eich- 
ards  v.  Edick,  17  Barb.  260;  Graham  v.  Camman,  13  How.  360; 
S.  C,  5  Duer.  667  ;  Kichards  v.  Bcavis,  28  Eng.  L.  &  Eq.  157 ; 
Goodall  v.  McAdams,  14  How.  385  ;  Goelet  v.  Gori,  31  Barb.  314. 

Sec.  88.  The  demurrer  must  specify  the  grounds  of  objection  to 
the  petition.  Unless  it  do  so,  it  shall  be  regarded  as  objecting  only 
that  the  petition  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  If  the  demurrer  do  not  state  the  specific  objection,  it 
will  be  held  to  relate  only  to  the  1st  and  6th  subdivisions,  to  the 
jurisdiction  of  the  court,  and  the  insufficiency  of  the  case  set  forth 
in  the  petition.  It  is  true  this  section  confines  it  to  the  6th  subdi- 
vision, but  objection  to  jurisdiction  can  be  taken  at  anytime.  Ful- 
ton Fire  Ins.  Co.  v.  Baldwin,  37  JST.  Y.  648.  In  a  demurrer  under 
the  1st  and  6th  subdivisions  of  section  87,  it  is  sufficient  to  state 
the  grounds  of  it  in  the  language  of  the  subdivisions  ;  but  a  demur- 
rer under  either  of  the  other  subdivisions  must  specifically  point 
out  the  ground  of  the  objection.  Swift  v.  Dewitt,  1  Code,  25  ;  S. 
C.  3  How.  280,  under  name  of  Pewit  v.  Swift ;  Glenney  v.  Hutch- 
ins,  2  Code,  56;  S.  C,  4  How.  98;  Haire  v.  Baker,  5  N.  Y.  357. 

A  demurrer  stating  "that  it  does  not  appear  that  the  plaintiff 
had  any  title  to  the  note  when  the  suit  was  commenced,"  is  insuf- 
ficient to  raise  the  question  as  to  plaintiff's  right  to  sue.  White  v. 
Low,  7  Barb.  204.  So  one  merely  stating  that  there  is  a  defect  of 
parties  defendant,  is  defective.  Skinner  v.  Stuart,  13  Abb.  443; 
S.  C,  15  lb.  391 ;  39  Barb.  206.  Where  the  ground  of  demurrer 
stated  was  that  the  petition  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action,  and,  among  other  things,  that  it  did  not 
show  plaintiff's  capacity  to  sue,  it  was  held  that,  though  the  latter 
objection  should  have  been  stated  as  a  distinct  ground,  yet  it  was 
sufficient  to  raise  the  question  as  to  the  plaintiff's  capacity  to  sue. 
Conn.  Bank  v.  Smith,  9  Abb.  168  ;  S.  C,  17  How.  487. 

Sec.  90.  Where  a  demurrer  is  sustained  for  misjoinder  of  causes 
of  action  on  motion  of  the  plaintiff,  the  court  shall  allow  him,  with 
or  without  costs,  to  file  several  petitions,  each  including  such  causes 
of  action  as  are  allowed  to  be  joined  ;  and  each  petition  shall  be 
docketed  as  a  separate  action.  Such  an  amendment  should  never 
be  made  without  making  plaintiff  pay  the  costs  of  the  service 
under  our  practice,  where  no  costs  are  allowed  on  a  demurrer. 


ANSWER.  163 


CHAPTER  XIII. 


ANSWER. 

The  following  are  the  provisions  of  the  code  on  this  subject : 
Sec.  92.  The  answer  shall  contain  : 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
petition  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  defense,  coun- 
terclaim, or  set-off,  in  ordinary  and  concise  language,  and  without 
repetition. 

Sec.  93.  The  defendant  may  set  forth,  in  his  answer,  as  many 
grounds  of  defense,  counterclaim,  and  set-off,  as  he  may  have, 
whether  they  be  such  as  have  been  heretofore  denominated  legal 
or  equitable,  or  both.  Each  must  be  separately  stated  and  num- 
bered, as  they  must  refer  in  an  intelligible  manner  to  the  causes  of 
action  which  they  are  intended  to  answer. 

Sec  94.  The  counterclaim,  mentioned  in  the  last  section,  must  be 
one  existing  in  favor  of  a  defendant,  and  against  a  plaintiff,  be- 
tween whom  a  several  judgment  might  be  had  in  the  action,  and 
arising  out  of  the  contract  or  transaction  set  forth  in  the  petition 
as  the  foundation  of  the  plaintiff's  claim  or  connected  with  the  sub- 
ject of  the  action. 

Sec  95.  If  the  defendant  omit  to  set  up  the  counterclaim  or  set- 
off, he  can  not  recover  costs  against  the  plaintiff  in  any  subsequent 
action  thereon  ;  but  this  section  shall  not  apply  to  causes  of  action 
which  are  stricken  out  of  or  withdrawn  from  the  answer,  as  pro- 
vided in  sections  96  and  119. 

Sec  96.  When  it  appears  that  a  new  party  is  necessary  to  a 
final  decision  upon  the  counterclaim,  the  court  may  either  permit 
the  new  party,  to  be  made  by  a  summons,  to  reply  to  the  counter- 
claim, or  may  direct  the  counterclaim  to  be  stricken  out  of  tho 
answer,  and  made  the  subject  of  a  separato  action. 

Beo.  97.  A  s<t  -<jff  can  only  be  pleaded  in  actions  founded  on 
contract;  and  musl  !"■  a  canse  of  action  arising  upon  contract  or 
ascertained  by  the  decision  of  the  court. 

Sec  98.  When  it  appears  that  a  new  party  is  necessary  to  a 


164  ANSWER. 

final  decision  upon  the  set-off,  the  court  shall  permit  the  new  party 
to  be  made,  if  it  also  appear  that,  owing  to  the  insolvency  or  non- 
residence  of  the  plaintiff,  or  other  cause,  the  defendant  will  be  in 
danger  of  losing  his  claim,  unless  permitted  to  use  it  as  a  set-off. 

Sec.  99.  When  cross  demands  have  existed  between  persons  un- 
der such  circumstances,  that  if  one  had  brought  an  action  against 
the  other,  a  counterclaim  or  set-off  could  have  been  set  up,  neither 
can  be  deprived  of  the  benefit  thereof  by  the  assignment  or  death 
of  the  other,  but  the  two  demands  must  be  deemed  compensated, 
so  far  as  they  could  equal  each  other. 

Sec.  100.  The  guardian  of  an  infant  or  person  of  an  unsound 
mind,  or  attorney  for  a  person  in  prison,  shall  deny,  in  the  answer, 
all  the  material  allegations  of  the  petition  prejudicial  to  such  de- 
fendant. 


The  codes  of  Ohio,  Kansas,  and  Nebraska  are  substantially  alike 
in  regard  to  an  answer.  The  New  York  code,  after  saying  that  it 
must  deny  each  material  allegation,  says  "  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief."  This  was  the  rule 
in  chancery  and  can  have  no  application  in  a  common-law  plead- 
ing, which  is  to  state  nothing  but  facts.  Where  discovery  was 
sought  in  chancery,  this  language  was  appropriate.  The  forms  got 
up  under  the  New  York  code  are,  therefore,  not  applicable  to  the 
codes  of  the  States  above  enumerated.  It  is  unnecessary  to  state 
how  the  facts  set  up  in  the  answer  came  to  the  knowledge  of  the 
defendant,  whether  he  knows  them  personally,  or  only  from  the 
information  of  others.  In  his  affidavit  to  the  answer,  he  swears  he 
believes  the  answer  to  be  true.  Where  the  answer  is  sworn  to,  such 
an  averment  as  the  New  York  code  requires  is  unnecessary,  and 
where  it  is  not  sworn  to,  it  is  absurd. 

The  code  by  a  single  definition  undertakes  to  include  answers  to 
actions  both  at  common  law  and  in  equity.  The  two  are  so  unlike 
in  nature  and  remedy  that  they  can  not  both  be  included  in  the 
same  definition.  A  defense,  which  every  answer  is  required  to 
present,  is  entirely  applicable  to  actions  at  common  law;  but  in 
equity,  an  answer  maybe  no  defense  in  the  proper  meaning  of  that 
word,  as  an  answer  setting  up  a  lien  on  a  fund,  or  modifying  the 
relief  sought  in  the  petition,  or  setting  up  what  is  a  defense  only 
to  a  part  of  the  claim  of  the  plaintiff.  An  answer  in  an  equitable 
case  must  be  molded  to  meet  the  case  made,  or  any  modification  of 
it,  or  some  excuse  for  not  granting  the  relief,  or  setting  up  liens  to 
lands  or  funds,  either  superior  to  the  claim  of  the  plaintiff  or  sub- 


ANSWER.  165 

ordinate  thereto.  "While  a  plea  or  answer  to  an  action  at  law  is 
required  to  meet  the  plaintiff's  case  by  a  denial,  or  by  new  matter, 
which  shall  defeat  a  recovery,  it  must  only  present  but  a  single 
fact,  on  which  issue  may  be  taken ;  while  in  a  case  in  equity  the 
answer  must  set  up  all  the  facts  calculated  to  defeat  the  claim  of 
the  plaintiff  or  secure  the  rights  of  the  defendant.  The  result  of 
this  effort  at  uniformity  has  been  to  force  the  courts  to  construe  the 
code  as  to  an  answer  as  they  have  done,  as  to  the  petition,  so  as  to 
include  the  two  species  of  relief  and  a  pleading  adapted  to  the  na- 
ture of  each  remedy. 

The  word  defense  is  held  not  to  be  used  in  its  primal  legal  sense, 
to  wit,  resistance  or  denial ;  but  is  used  to  signify  such  new  matter 
as  constitutes  either  a  complete  or  partial  bar  to  the  action.  Thus 
the  word  "  defense"  has  ceased  to  mean  only  justification,  and  as  now 
used,  it  applies  to  matters  which  go  to  a  partial  as  well  as  a  total 
extinguishment  of  plaintiff's  claim.  Bush  v.  Prosser,  11  N.  Y.  347. 
But  this  construction  does  not  reach  the  case  of  conflicting  liens, 
where  the  answer  is  no  denial  or  new  matter  constituting  a  de- 
fense ;  it  merely  states  the  facts  on  which  the  lien  rests,  and  leaves 
to  the  court  the  law  as  to  their  respective  priorities.  There  are 
numerous  other  cases  of  the  like  character.  The  code,  therefore, 
must  be  construed  to  mean,  whether  its  words  import  that  or  not, 
that  the  answer  may  be  of  any  character  or  form  necessary  to  the 
presentation  of  the  claims  and  rights  of  the  defendant,  as  those 
rights  are  fixed  by  law,  whether  that  law  is  common  or  equity  law. 
The  code  was  intended  to  furnish  the  means  of  enforcing  all  rights 
and  making  all  defenses,  which  either  the  common  law  or  law  as 
administered  in  a  court  of  equity  insured  to  him.  This  is  the  only 
construction,  which  will  make  it  subserve  the  ends  of  justice. 

And  such  is  the  construction  given  to  it,  in  fact,  by  our  Supreme 
Court  in  the  case  of  Peebles  v.  Isaminger  et  al.,  18  Ohio  St.  490. 
This  was  a  contest  growing  out  of  partnerships  in  running  a  fur- 
nace, where  there  was  a  contest  between  different  classes  of  cred- 
itors and  as  to  their  respective  priorities.  The  bill  set  forth  a 
mortgage  by  Isaminger  to  plaintiff's  testator  of  3-32  parts  of  cer- 
tain real  estate,  and  asked  a  sale  thereof.  The  defendants  set  up 
that  the  land,  a  portion  of  which  was  mortgaged,  was  partnership 
property  ;  that  the  firm  became  insolvent,  and  after  some  changes 
became  a  corporation  by  the  name  of  Buckeye  Furnace  Company, 
which  succeeded  to  all  the  rights  of  the  prior  insolvent  company, 
and  was  liable  for  its  debts.  Daniels  v.  Eathburn  set  up  a  prior  and 
junior  mortgage  given  by  the  company  on  all  the  lands  of  the 


166  ANSWER. 

company,  and  insisted  that  the  assets  be  applied  to  partnership 
debts  prior  to  the  debt  of  Isaminger  due  the  plaintiff's.  Demurrers 
were  plead  to  these  answers.  It  will  be  seen  that  here  was  no  de- 
fense to  plaintiff's  suits;  on  the  facts  set  up  in  the  answer,  plaintiff's 
had  a  right  to  file  this  petition  to  reach  at  any  rate  any  interest 
Isaminger  might  individually  have  in  this  real  estate.  These  an- 
swers neither  denied  the  case  made  by  the  plaintiffs  in  their  peti- 
tion, nor  did  they  set  up  new  matter  by  way  of  defense  to  the  ac- 
tion ;  the  answers  simply  set  forth  the  character  of  Isaminger's 
interest  in  it  as  a  partner,  and  that  there  were  partnership  debts 
and  mortgages  to  be  paid  before  any  pai't  of  the  firm  assets  could 
be  applied  on  the  individual  mortgage  of  Isaminger.  These  an- 
swers were  absolutely  necessary  to  the  settlement  of  the  rights  of 
the  parties,  and  yet  neither  of  them  constituted  a  denial  of  the 
facts  stated  in  the  petition,  nor  did  they  state  new  matter  consti- 
tuting a  defense  of  the  action.  It  was  a  case  clearly  outside  of  the 
letter  of  the  code,  and  as  such  the  court  had  to  deal  with  it. 
Welch,  J. :  "  Whether  the  demurrer  to  the  answer  is  well  taken, 
seems  to  be  the  only  question  legitimately  before  us,  and  we  decide 
this  without  hesitation  in  the  negative.  It  is  not  necessary  that 
an  answer  to  a  petition  seeking  equitable  relief  should  set  up  a  com- 
plete defense  to  the  action.  It  is  enough  that  it  deny,  or  confess  and 
avoid,  some  material  part  of  the  plaintiff's  case,  so  as  to  modify  or 
abridge  his  right  to  relief;  or,  if  counter-relief  is  asked,  that  it 
shows  a  right  in  the  defendant  to  such  counter-relief.  Where,  as 
in  the  present,  such  an  answer  does  not  profess  to  be,  and  is  not 
from  its  nature  necessarily  pleaded  as  a  bar  to  the  action,  a  demur- 
rer to  it  raises  no  question  of  its  sufficiency  as  such.  The  answer 
in  such  a  case  is  more  like  the  old  answer  in  chancery  than  it  is 
like  the  common -law  plea  in  bar,  or  the  plea  to  a  bill  in  equity.  A 
demurrer  to  an  answer  was  never  allowed  in  chancery  practice,  if 
indeed  it  was  ever  heard  of.  The  remedy,  in  case  of  insufficient 
answer,  was  by  motion  to  strike  it  from  the  files,  or  to  take  the  bill 
as  confessed,  notwithstanding  the  answer.  The  only  question, 
upon  such  a  motion  was,  whether  the  answer  was  pertinent  and 
material  to  the  case.  An  answer  in  such  cases  is  always  pertinent 
and  material,  when,  in  the  language  of  the  court  in  Van  Eensselaer 
v.  Price,  4  Paige  Ch.  174,  it  can  have  any  influence  whatever  in 
the  decision  of  the  suit,  either  as  to  the  subject-matter  of  the  con- 
troversy, the  particular  relief  to  be  given,  or  to  the  costs.  See 
also  Lube's  Eq.  PL  178  ;  Mitf.  Eq.  PI.  249 ;  Yan  Santvoord's  PL 
(2  ed.)  472,  705.     Tried  by  these  rules,  it  is  hardly  necessary  to 


ANSWER.  167 

say,  the  answers  in  question  are  sufficient,  and  the  cause  must  be 
heard  upon  the  facts  they  disclose  as  well  as  upon  the  petition, 
unless  those  facts  are  controverted  by  the  reply." 

This  decision  is  all  right ;  the  facts  contained  in  the  answers  were 
absolutely  necessary  to  be  stated  on  the  record  so  that  the  rights 
of  the  parties  might  be  legally  passed  upon.  But  where  in  the 
letter  of  the  code  is  there  any  authority  for  such  an  answer?  Nor 
does  the  court  allude  in  its  decision  to  the  code,  but  predicates  its 
decision  upon  the  law  of  pleading  as  heretofore  recognized  in  courts 
of  equity.  It  is  true  there  is  one  section  in  the  code,  which  justi- 
fies this  mode  of  reasoning  and  the  conclusion  arrived  at,  to  wit, 
section  603,  which  provides  that,  "if  a  case  ever  arise,  in  which  an 
action  for  the  enforcement  and  protection  of  a  right,  or  the  redress 
or  prevention  of  a  wrong,  can  not  be  had  under  this  code,  the  prac- 
tice heretofore  in  use  may  be  adopted  so  far  as  may  be  necessary 
to  prevent  a  failure  of  justice."  This  section  permits  the  court  to 
resort  to  the  prior  rules  of  pleading  and  practice,  where  the  code 
does  not  provide  a  remedy  for  an  existing  right.  The  court  say  it 
is  not  necessary  that  an  answer  to  a  petition  seeking  equitable  relief 
should  set  up  a  complete  defense  to  the  action.  The  court  here 
confine  their  remark  to  an  action  founded  on  principles  of  equity, 
thus  making  a  distinction  between  actions  at  law  and  suits  in 
equity  as  to  the  character  of  an  answer,  and  yet  the  code  makes 
no  such  distinction ;  but  the  nature  of  things  makes  it,  and  no  act 
of  legislation  can  destroy  it.  The  court,  therefore,  was  compelled 
to  hold  that  the  code  must  be  construed  with  reference  to  the  na- 
ture of  the  case,  and  must  mean  one  thing  when  applied  to  an 
action  at  law,  and  another  when  applied  to  a  suit  in  equity.  Such 
was  the  object  of  the  code  to  provide  for  answers  in  equity  as  well 
as  in  cases  at  law,  and  must  receive  such  a  construction  as  will 
secure  that  end.  Hence,  on  this  authority,  the  validity  of  an  an- 
swer to  a  suit  in  equity  is  to  be  settled  by  an  appeal  to  works  on 
pleading  in  equity  and  the  decisions  of  courts  of  chancery.  This 
must  be  done,  if  the  law  as  recognized  in  courts  of  equity  is  to  be 
carried  out,  and  rights  under  it  enforced  and  protected.  The  de- 
cision would  have  been  more  satisfactory,  if  it  had  been  placed 
directly  on  this  forced  construction  of  the  code,  as  indispensable  to 
attain  the  end  intended  by  it — the  administration  of  justice  accord- 
ing to  the  rights  of  parties,  whether  arising  under  the  common 
law  or  under  the  law  as  administered  in  a  court  of  chancery.  And 
the  code  gives  the  rule  of  construction  :  it  is  "  to  be  liberally  con- 
strued with  a  view  to  promote  its  objects  and  assist  the  parties  in 


168  ANSWER. 


obtaining  justice."  Such  ti  liberal  construction  being  indispensa- 
ble to  assist  parties  in  obtaining  justice,  it  is  the  duty  of  the  court 
to  recognize  such  construction,  and  say  that  whatever  was  a  good 
plea  to  an  action  at  law,  is  now  a  good  answer  to  an  action  founded 
on  legal  principles,  and  whatever  was  a  good  answer  in  a  suit  in 
equity  under  the  old  practice,  is  a  good  answer  under  the  code. 
This  recognizes  the  absolute  distinction  which  exists  between  the 
two  classes  of  cases,  and  renders  the  pathway  of  the  pleader  easy 
and  certain.  lie  will  know  when  he  is  right  and  can  know  when 
he  is  wrong,  because  equity  pleading  under  the  old  practice  was 
simple  and  easily  understood;  and  this  case  is  a  direct  authority  for 
this  view  of  the  code  and  what  must  be  the  practice  under  it. 

It  is  the  duty  of  a  guardian  to  make  for  the  infant  a  proper  de- 
fense, and  for  this  purpose  to  bring  the  rights  of  his  ward  under 
the  consideration  of  the  court  for  adjudication.  Long  v.  Mulford, 
17  Ohio  St.  484.  The  court  say  :  "  The  appointment  of  a  guardian 
ad  litem  is  not  a  mere  matter  of  form.  A  suit  against  an  infant 
can  not  be  prosecuted  without  such  guardian  ;  and  the  object  of  the 
requirement  is  to  secure  to  the  infant  a  proper  defense.  It  is  the 
duty  of  a  guardian  ad  litem  to  ascertain  from  the  infant  and  his 
friends,  or  from  other  sources  of  information,  what  are  the  legal 
and  equitable  rights  of  his  ward.  And  it  is  the  special  duty  of  the 
guardian  to  bring  those  rights  directly  under  the  consideration  of 
the  court  for  decision.  Dow  v.  Jewell,  1  Foster,  (N.  H.)  486  ; 
Seance  v.  Whitney,  12  111.  150 ;  Knickerbocker  v.  De  Frust,  2  Paige, 
304;  1  Daniel  Ch.  Pr.,  title  Infants.  His  authority  is  to  protect; 
and  the  court  will  not  suffer  his  ward  to  be  prejudiced  either  by  his 
admissions  or  his  laches.  Bing.  on  Inf.  135.  And  where  the  an- 
swer of  the  guardian  admits  the  bill  to  be  true,  the  complainant 
must  prove  its  allegations  with  the  same  strictness,  as  if  the  answer 
had  interposed  a  direct  and  positive  denial.  Enos  v.  Copps,  12  111. 
257;  8  Ohio,  377;  4  Gill,  370." 

It  will  thus  be  seen  that  a  guardian  for  the  action  has  not  done 
his  duty  in  putting  in  the  answer  provided  for  in  the  code ;  an  an- 
swer denying  all  the  facts  set  up  in  the  petition.  It  is  his  duty  to 
investigate  the  case  of  his  infant  client,  and  see  if  there  are  other 
defenses  than  a  simple  denial.  And  yet  the  practice  is  of  the  very 
loosest  character.  The  plaintiff  moves  for  the  appointment  of  the 
guardian,  names  the  person,  and  generally  draws  up  the  formal 
answer  of  a  general  denial,  and  goes  on  to  trial  without  any  investi- 
gation of  the  case  by  the  guardian  for  the  action;  and  the  guardian 
seems  to  suppose  he  had  discharged  his  duty  by  putting  in  a  formal 


ANSWER.  169 

answer  of  denial.  By  this  loose  practice,  the  rights  of  infants  are 
being  every  day  sacrificed  in  courts  of  justice  by  parties  having 
interests  opposite  to  theirs.  There  are  often  other  defenses  which 
can  not  be  set  up  without  a  special  answer,  and  will  not  be  made 
manifest  to  the  court  trying  a  case  on  a  general  denial.  It  is  im- 
portant that  courts  should  require  the  guardian  to  look  into  the 
case,  and  not  allow  an  interested  plaintiff  to  have  the  whole  thing 
in  his  own  way.  The  above  case  of  Long  v.  Mulford  is  a  good 
illustration  of  that  kind  of  practice,  and  I  have  in  my  own  mind  a 
case  decided  by  myself,  where  the  grossest  injustice  was  done,  be- 
cause the  real  case  was  not  set  up  in  the  answer.  The  court  rely 
too  much  upon  counsel,  while  the  counsel  is  inspired  in  his  action 
by  the  representations  of  his  client,  who  is  interested  against  the 
minor  defendants. 

It  is  not  necessary  that  an  answer  should  meet  the  whole  case 
made  in  the  petition ;  an  answer  is  sufficient  if  it  constitute  a  de- 
fense or  counter-claim,  or  set-off  to  so  much  of  the  petition  as  it 
professes  to  answer.  McKyring  v.  Bull,  16  N.  Y.  297,  307;  Allen 
v.  Haskins,  5  Duer,  322;  Kneedler  v.  Sternberg,  10  How.  68.  But 
if  it  assumes  to  answer  the  whole  cause  of  action,  and  in  fact  only 
answers  a  part  of  it,  it  may  be  demurred  to.  Foster  v.  Hazen,  12 
Barb.  547;  Beach  v.  Barons,  13  Barb.  306;  Thumb  v.  Walrath,  6 
How.  196 ;  Nichols  v.  Dusenbury,  2  N.  Y.  283 ;  Hawk  v.  Pollard,  6 
Blackf.  108,  351;  Cross  v.  Watson,  6  Blackf.  129.  The  answer 
should  distinctly  specify  that  portion  of  the  petition  to  which  it 
applies.     1  Barb.  480 ;  13  Barb.  547. 


The  subject  of  answers  divides  itself  naturally  into  two  great 
classes : 

1.  A  denial  of  what  is  contained  in  the  petition. 

2.  The  statement  of  new  matter  constituting  a  defense,  etc. 

This  is  the  old  distinction  at  common  law,  and  it  is  one  founded 
in  the  very  nature  of  a  legal  proceeding  by  action  whether  at  law 
or  in  chancery. 

THE   DENIAL. 

A  denial  may  be  either  general  or  special;  a  general  or  specific 
denial  of  each  material  allegation  of  the  petition,  controverted  by 
the  defendant.  The  answer  is  to  be  a  denial,  not  an  admission,  of 
the  facts  set  up  in  the  petition.  It  would  seem,  therefore,  that  an 
answer  admitting  the  facts  of  the  petition  ought  to  be  stricken  out 


170  ANSWER. 


as  frivolous  because  it  is  unnecessary.  Every  allegation  not  de- 
nied, is  admitted  ;  it  is,  therefore,  only  incumbering  the  record  to 
put  on  file  an  answer  admitting  just  what  the  law  would  have 
taken  for  granted  and  as  true,  for  the  purposes  of  the  trial.  Where, 
therefore,  a  party  can  not  deny,  ho  must  remain  silent  and  let  judg- 
ment go  by  default.  In  actions  pending  on  damages  that  are  un- 
certain, the  defendant  contests  the  amount  on  an  inquiry  of  dam- 
ages. Thus,  in  an  action  of  slander,  if  he  can  not  deny  the  speak- 
ing of  the  words,  he  can  put  in  no  answer  ;  he  must  go  to  a  jury 
on  an  inquiry  of  damages,  and  in  that  way  contest  the  amount  of 
the  recovery.  The  same  is  true  of  every  action  where  the  amount 
to  be  recovered  is  uncertain,  to  be  estimated  by  a  jury,  or  a  court 
upon  evidence.  Van  Santvoord's  PI.  249 ;  Lewis  v.  Coulter,  10 
Ohio  St.  451  ;  18  N.  Y.  121. 

I.  Of  a  General  Denial. 

A  general  denial  is  one  which  meets  all  the  material  allegations 
of  the  petition  with  a  negative  and  compels  the  plaintiff  to  prove 
them  in  order  to  recover.  It  is  equivalent  to  the  general  issue  of 
nil  debet,  in  debt ;  non  assumpsit,  in  that  action ';  and  not  guilty,  in 
an  action  of  trespass,  as  these  issues  have  been  limited  by  the  new 
rules  in  England.  They  deny  all  the  material  allegations  of  the 
petition,  put  them  in  issue,  and  nothing  more.  The  simple  inquiry 
is,  has  the  plaintiff  proved  what  he  has  alleged  in  his  petition? 
Under  such  an  issue  nothing  can  be  given  in  evidence  which  does 
not  tend  to  prove  or  disprove  the  facts  stated  in  the  petition  ;  every 
other  defense  must  be  specially  pleaded  as  new  matter.  Under  the 
issue  of  not  indebted,  nothing  is  in  issue  but  the  truth  of  the  plaint- 
iffs claim  ;  payment,  set-off,  and  every  other  new  matter  must  be 
specially  set  up  under  the  second  division  of  the  subjects  of  an- 
swer. 

The  old  general  issues  are  as  well  calculated  as  any  that  can  be 
substituted  to  meet  the  wants  or  demands  of  a  general  denial.  In 
actions  founded  on  torts,  no  good  reason  can  be  seen  why  the  plea 
of  general  denial  should  not  be  substantially  a  plea  of  not  guilty. 
That  plea  puts  in  issue  all  the  material  facts  in  the  declaration. 
Although  in  its  terms  it  is  said,  "  the  defendant  is  not  guilty  of  the 
said  supposed  grievances  above  laid  to  his  charge,  or  any  or  either 
of  them,  or  any  part  thereof,  in  manner  and  form  as  the  plaintiff 
hath  above  thereof  complained  against  him,"  it  was  construed  not 
merely  to  deny  the  actual  form  and  manner  of  the  charge,  but  to 


ANSWER.  171 


controvert  the  substance  of  every  cause  of  action  contained  in  the 
declaration.     Per  Barculo,  J.,  Salinger  v.  Lusk,  7  Pr.  -±30. 

"  The  wit  of  man,"  says  the  same  judge  in  that  case,  "  has  never 
yet  devised,  and  it  may  well  be  doubted  whether  the  present  gen- 
eration, with  all  its  labors,  will  ever  bring  forth,  any  formula  equal 
to  the  old  general  issue  for  the  purposes  of  a  general  denial  It 
united  the  great  elements  of  all  good  pleading — brevity,  simplicity, 
and  comprehensiveness.  And  if  the  principle  of  a  general  denial 
is  to  be  reinstated,  of  which  we  have  all  the  encouragement  deriv- 
able from  the  fact  that  it  has  stood  firmly  as  the  law  of  the  land 
since  the  6th  day  of  May  last,  notwithstanding  its  previous  un- 
steadiness, I  see  no  reason  why  the  courts  should  not  sanction  the 
old  lorm  of  pleading — the  general  issue — and  thus  put  an  end  to 
this  vexatious  and  useless  course  of  litigation." 

Nor  can  we  see  any  reason  why  this  general  denial  should  not 
assume  some  fixed  form  ;  and  what  form  better  than  the  old?  It 
is  all  important  to  have  some  common  form  ;  otherwise  the  court 
must  settle  the  meaning  and  extent  of  the  denial  in  each  case ; 
whereas  an  agreed  form  becomes  settled,  its  meaning  is  fixed ;  so  that 
in  making  use  of  it  one  knows  exactly  what  is  in  issue,  and  what 
is  to  be  proved  on  one  side  and  to  be  disproved  on  the  other.  The 
parties  know  what  evidence  such  an  issue  calls  for,  and  what  evi- 
dence is  admissible  under  it.  Nor  will  parties  be  taken  by  sur- 
prise by  the  court's  taking  a  different  view  of  the  issue  and  of  its 
extent  from  what  counsel  have. 

Where,  therefore,  the  plaintiff  claims  that  the  defendant  is  in- 
debted to  him  in  a  certain  sum  for  goods  sold,  labor  performed, 
money  had  and  received,  money  paid,  or  on  an  account  stated,  the 
defendant  should  be  permitted  to  aver  that  he  is  not  indebted  to 
the  said  plaintiff  in  the  said  sum,  nor  any  part  thereof,  as  the  said 
plaintiff  hath  in  his  said  petition  alleged.  This  covers  the  whole 
of  the  plaintiffs  claim,  and  puts  in  issue  the  truth  of  it  and  every 
part  thereof.  If  the  defendant  admits  the  correctness  of  what  the 
plaintiff  claims,  he  must  set  up  as  new  matter  any  facts  which  de- 
feat this  apparent  right  of  recovery.  So  where  the  plaintiff  de- 
clares on  a  promissory  note,  why  should  not  the  defendant  be  per- 
mitted to  make  his  general  denial,  by  averring  that  he  did  not 
promise  in  manner  and  form  as  the  said  plaintiff  hath  thereof  de- 
clared against  him  in  his  said  petition?  If  the  plaintiff  complains 
of  a  tort  in  its  various  forms,  whether  with  or  without  force,  what 
better  general  denial  than  that  of  "  not  guilty?"  Unless  some 
such  method  is  adopted  for  a  general  denial,  infinite  conflicts  and 


172  ANSWER. 


difficulties  must  ariso  in  endeavoring  to  ascertain  whether  a  denial 
is  general  or  special ;  and  if  general,  does  it  deny  what  is  immate- 
rial as  well  as  what  is  material? 

To  an  allegation  that  the  defendant  "  assaulted  the  plaintiff,  and 
seized  him  hy  the  collar  and  shook  him  violently,"  the  defendant 
'•  denied  that  he  did  assault  the  said  plaintiff,  and  seize  him  by  his 
collar  and  shake  him  violently."  The  court  held  the  answer  bad. 
"The  defendant,"  said  Barculo,  J.,  "  has  grouped  three  of  the 
charges,  and  denied  them  on  oath  in  such  a  manner  that,  if  he 
should  be  guilty  of  two,  and  not  guilty  of  the  other  one,  his  an- 
swer would  not  be  literally  untrue."  Hopkins  v.  Everett,  3  Code, 
150.  In  this  case  the  assault  was  the  gist  of  the  dispute  ;  the  other 
facts  were  mere  facts  of  aggravation.  In  Kellog  v.  Church,  4  Pr. 
339,  it  was  held  a  sufficient  general  denial  of  an  allegation  of  the 
taking  of  sundry  articles  of  personal  property,  to  say  that  the  de- 
fendant "  denies  each  and  every  allegation  alleged  in  said  complaint.'" 
Cady,  J. :  "I  think  such  an  answer  will  do.  It  would  be  intoler- 
able to  require  specific  denials  of  an  entire  complaint  in  other 
terms.  I  will  not  aid  in  establishing  the  intricate  and  voluminous 
system  of  pleading  under  the  code,  which  seems  to  be  growing  up 
in  practice  ;  I  can  not  believe  that  it  was  the  design  of  the  code- 
makers;  and  until  my  position  is  overruled  by  the  Supreme  Court 
in  bench,  I  shall  hold  such  a  denial  as  this  good."  So  in  Dennison 
v.  Dennison,  9  Pr.  246,  an  answer  which  denied  each  and  every  al- 
legation of  the  complaint,  seems  to  have  been  considered  sufficient 
as  a  general  denial. 

These  cases  show  what  is  meant  by  the  term  general  denial ;  it 
is  a  denial  which  meets  all  the  averments  of  the  petition,  without 
going  over  them  in  detail,  and  in  that  way  making  the  answer  but 
a  copy  of  the  petition  with  a  negation  added  to  it.  This  serves 
only  to  increase  the  length  of  the  record  without  advantage  to  any 
one. 

There  has  been  an  objection  raised  to  the  denial  that  the  defend- 
ant is  not  indebted  in  manner  and  form  as  the  plaintiff  has  declared 
against  him,  as  not  a  good  denial,  because  it  refers,  not  to  the  time 
when  the  cause  of  action  arose,  but  when  the  suit  was  commenced, 
and  hence  payment  or  any  other  defense  would  come  in  under  that 
issue.  That  was  the  old  construction  of  the  plea,  and  it  may  be  on 
that  account  objectionable.  Under  the  new  rules  of  pleading  in 
England  the  plea  has  been  changed  ;  and  it  now  is  stated  in  this 
form  :  that  the  defendant  never  was  indebted  to  the  plaintiff  inmanner 
and  form  as  he  has  in  his  said  petition  averred.     This  form  meets  the 


ANSWER.  173 


true  issue,  the  fact  whether  such  indebtedness  ever  did  exist.  This 
is  equivalent  to  saying  that  he  denies  each  and  every  allegation  con- 
tained in  the  petition.  Timmis  v.  Gibbins,  11  Eng.  L.  &  Eq.  64. 
The  form  of  the  answer  should  be,  I  think,  "that  the  defendant  never 
was  indebted  ;"  hence  any  defense  arising  after  the  existence  of  the 
indebtedness  would  have  to  be  specially  plead,  like  payment,  re- 
lease, etc. 

In  practice  these  general  denials  are  infinite  in  variety;  each 
attorney  forms  one  for  himself.  The  general  form  is  that  he  denies 
each  and  every  allegation  contained  in  said  petition,  or  all  and 
several  the  allegations.  The  object  is  to  make  a  form  short  and 
comprehensive.  In  such  a  case,  a  single  count  in  the  answer  is  all 
that  is  required,  no  matter  how  many  separate  causes  of  action  may 
be  stated  in  the  petition.  A  general  denial  may  be  interposed  to 
each  cause  of  action ;  but  in  case  there  is  more  than  one  denial, 
each  separate  denial  must  be  separately  stated  and  numbered  ;  they 
must  not  all  be  run  together  into  one  paragraph  or  count.  In  Van 
Giesen  v.  Van  Giesen,  10  N.  Y.  316,  318,  Johnson,  J.,  says:  "Sec- 
tion 128  contemplates  but  two  sorts  of  allegations  by  way  of  de- 
fense :  the  first,  denials  of  allegations  of  the  complaint.  Every 
such  denial  of  a  material  allegation  forms  a  separate  defense,  and 
should,  under  section  129,  be  separately  stated." 

In  the  case  of  Wall  v.  Buffalo  Water-works  Co.,  18  N.  Y.  119,  it 
was  held  that  where,  in  an  action  for  damages  caused  by  negligence 
in  leaving  a  ditch  open,  the  complaint  stated  that  plaintiff  fell  into 
it,  "without  any  fault  or  want  of  care  on  his  part,"  the  answer 
denied  that  the  plaintiff,  without  any  fault  or  want  of  care  on  his 
part,  did  fall  therein,  this  put  in  issue  the  falling  into  the  ditch,  as 
well  us  the  exei'cise  of  proper  care  by  the  plaintiff.  Such  an  am- 
biguity in  an  answer  is  the  proper  subject  for  a  motion  that  it  bo 
made  more  definite  and  certain  ;  and  that  if  the  plaintiff  goes  to 
trial  without  availing  himself  of  that  remedy,  the  answer  is  to  be 
construed  most  strongly  against  him.  Roosevelt,  J.,  says :  "Wo 
consider  the  answer  notwithstanding  as  open  to  criticism.  It  is  a 
species  of  negative  payment.  But  the  plaintiff,  if  dissatisfied  with 
the  vagueness  and  uncertainty  of  the  pleading,  had  his  remedy  by 
motion.  Not  having  applied  at  the  proper  time  for  an  order  to 
compel  the  defendant  to  be  more  definite  and  certain,  he  is  pre- 
sumed to  bave  been  satisfied  with  the  pleading  as  it  stood,  especially 
as  he  knew  that  under  the  present  system  it  was  made  the  duty  of 
the  court  to  construe  pleadings  liberally,  and,  of  course,  not  to  as- 
sume that  parties  by  implication  intended  to  admit,  when  they 


174  ANSWER. 


could  safely  deny  their  adversary's  case."  So  where,  to  a  petition 
averring  a  forfeiture  of  the  lease  by  underletting  without  consent 
of  the  lessor,  the  defendant  in  his  answer  denied  that,  in  violation 
of  said  covenant  and  without  the  consent  of  said  plaintiff,  he  had 
underlet  said  premises,  the  court  below  held  that  this  admitted 
the  underletting  by  not  denying  it;  but  the  Court  of  Appeals  held 
that  the  answer  did  deny  the  fact  of  underletting,  as  well  as  doing 
it  without  the  consent  of  the  landlord.  Lawrence  v.  Williams,  1855, 
stated  by  Eoosevelt,  J.,  in  his  opinion  in  the  above  case,  18  N.  Y. 
122.  So  where  an  answer  "  denied  all  the  material  allegations  of 
said  plaintiff  in  his  said  petition,"  the  court  held  that  the  answer 
was  uncertain,  but  would  have  been  good  on  demurrer;  but  that, 
had  a  motion  been  made  for  that  purpose,  the  defendant  might 
have  been  compelled  to  make  it  more  certain  and  specific.  The 
pleader  ought  not  to  be  permitted  by  the  use  of  the  qualifying  word 
material  to  assume  to  himself  the  determination  of  the  question  as 
to  what  facts,  are  material,  and  thus  render  a  conviction  for  per- 
jury  difficult  or  impossible.  And  where  the  denial  is  general,  it 
should  be  of  each  and  all,  or  each  and  every  of  the  allegations  referred 
to.     Lewis  v.  Coulter,  10  Ohio  St.  451. 

Where  the  petition  averred  that  the  defendant  committed  a 
wrongful  act  while  he  was  in  the  employment  of  another,  without 
alleging  that  the  act  was  done  within  the  scope  of  his  employment, 
is  not  demurrable,  and  an  answer  denying  that  the  defendant  com- 
mitted such  act,  and  alleging  that  it  was  committed  by  a  third  per- 
son, is  merely  a  denial  and  requires  no  reply.  Hoffman  v.  Gordon 
&  Bro.,  15  Ohio  St.  211.  The  reason  for  this  last  ruling  is  appar- 
ent ;  if  the  defendant  did  not  do  the  act,  in  that  action  it  was  im- 
material who  did  it.  The  last  clause  was  wholly  irrelevant  and 
immaterial ;  the  denial  that  he  did  it,  meets  the  whole  case  of  the 
plaintiff.  So  I  think  that  an  answer  would  be  good  which  should 
deny  each  and  all  the  allegations  contained  in  the  petition,  except 
the  allegation  of  the  making  the  written  contract  attached  and 
made  a  part  of  said  answer.  This  is  a  briefer  form,  where  the  de- 
nial meets  all  the  averments  except  one.  Denials  are  too  often 
prolix,  denying  all  and  each  at  first  and  making  numerous  special 
denials,  so  that  a  jury  is  confounded  in  discovering  the  true  issue 
on  which  they  have  to  pass.  Where  there  is  a  general  denial  there 
should  be  no  other,  and  the  special  denials  may  be  struck  out  on 
motion  as  superfluous  and  immaterial ;  and  where  special  issues  or 
denials  are  made,  there  should  be  no  general  one.  Special  denials 
are  only  appropriate  when  there  are  portions  of  the  petition  which 


ANSWER.  175 

the  defendant  can  not  deny,  and  other  portions  which  he  can  safely 
deny ;  in  such  a  case  the  denials  should  be  special  to  each  material 
averment,  and  as  above  said,  should  each  be  stated  separately  and 
numbered,  as  each  denial  is  a  complete  defense  to  the  action. 

It  seems  that  an  answer  which  contains  a  general  denial  of  each 
and  every  allegation  of  the  petition,  except  certain  parts  therein 
admitted  or  excepted  from  the  operation  of  the  denial,  is  good. 
Parshall  v.  Tillon,  13  How.  7  ;  Genesee  Mut.  Ins.  Co.  v.  Maynihen, 
5  lb.  321 ;  Smith  v.  Wells,  20  lb.  158.  The  word  controverted,  in 
connection  with  the  word  denial,  whether  the  denial  be  general  or 
special,  requires  that  the  answer  should  so  describe  the  allegation 
of  the  petition  controverted  that  any  person  of  intelligence  can 
identify  them.  Mattison  v.  Smith,  19  Abb.  288 ;  S.  C,  1  Eob.  706. 
An  answer  which  denies  all  the  allegations  which  are  contained 
between  specific  folios,  is  good  as  a  general  denial,  lb.;  Gassettu. 
Crocker,  9  Abb.  39.  Yet  qucere?  How,  when  pleadings  are  copied 
or  recorded,  shall  one  know  what  is  or  is  not  denied?  The  resort 
must  in  all  cases  be  to  the  original  paper  to  which  the  answer  was 
filed.  An  answer  may  contain  a  general  denial  of  part  of  a  peti- 
tion, and  a  special  one  of  the  remainder.  Blake  v.  Eldred,  18  How. 
240.  This  ruling  is  somewhat  inconsistent  with  the  definition  of 
a  general  denial  being  a  denial  of  all  the  allegations  of  the  petition. 

An  answer  which,  instead  of  denying  the  allegations  of  the  pe- 
tition, contains  a  version  of  the  transaction,  which  is  partially 
inconsistent  with  such  allegations,  and  merely  implies  that  such 
allegations  are  controverted,  or  justifies  an  inference  that  such  is 
its  effect,  is  not  a  denial.  West  v.  Amer.  Exch.  Bank,  44  Barb. 
176;  Wood  v.  Whiting,  21  lb.  190;  Hamilton  v.  Hough,  13  How. 
14;  Isles  v.  Tucker,  5  Duer,  393.  Where  an  answer  alleged  that 
the  contract  was  incorrectly  stated,  and  also  contained  a  specific 
denial  of  several  parts  of  the  contract  without  any  further  denial, 
it  was  held  that  the  agreement,  except  those  parts  specifically  de- 
nied, was  admitted.     Levy  v.  Bend,  1  E.  D.  Smith,  169. 

A  denial  must  be  direct,  not  argumentative ;  not  in  the  alterna- 
tive nor  in  the  disjunctive.  The  anwer  must  allege  specifically  a 
denial  of  a  particular  averment,  and  each  denial  should  be  distinct 
and  separate.  So  where  an  answer  grouped  three  of  the  plaint- 
iff's allegations  togel  lier,  and  denied  neither  the  first,  nor  the  second, 
nor  third  were  true,  it  was  held  bad.  Hopkins  v.  Everett,  3  Code, 
150;  S.  (J.,  6  How.  L59. 

Whnv  the  petition  alleges  several  causes  of  action,  or  a  divisible 
cause  of  action,  the  defendant  may  deny  part,  or  some,  or  one  of 


176  ANSWER. 

the  causes  of  action  and  leave  the  remainder  unanswered.  Tracey 
v.  Humphrey,  5  How.  155;  Willis  v.  Taggard,  6  How.  433;  Snyder 
v.  White,  6  How.  321.  Or  answer  it  by  any  other  defense  or  de- 
fenses.    Longworthy  v.  Knapp,  4  Abb.  115. 

II.   Of  a  Specific  Denial. 

A  specific  denial  is  where  the  defendant  takes  issue  on  some  ma- 
terial averment  of  the  petition.  It  may  be  illustrated  in  the  plead- 
ings in  covenant  under  the  former  system.  The  defendant  could 
deny  the  execution  of  the  covenant,  or  the  breach  of  a  condition, 
or  any  other  material  averment  contained  in  the  declaration.  The 
effect  of  such  a  denial  was  to  have  every  other  matter  admitted, 
and  to  confine  the  evidence  to  that  particular  issue.  So  under  the 
code,  the  defendant  may  confine  his  denial  to  a  single  fact ;  as  in 
an  action  to  recover  specific  personal  property,  the  defendant  may 
deny  the  property  of  the  plaintiff  in  the  article  demanded,  or  he 
may  deny  that  he  did  detain  the  possession  of  said  property  from 
the  plaintiff.  So  in  an  action  against  indorsers.  on  a  note  or  bill, 
the  defendant  may  deny  specifically  the  making  of  the  note  or 
bill,  the  indorsement  of  it,  the  demand  and  non-payment,  or  the 
notice  thereof.  Either  one  of  these  facts  is  material  to  be  proved, 
and  a  failure  to  prove  either  will  defeat  the  right  to  recover.  In 
an  action  to  recover  real  estate,  where  the  plaintiff  claims  title 
thereto,  the  defendant  may  specially  deny  this  allegation,  thereby 
admitting  all  other  material  averments,  as  his  own  possession,  or 
he  may  deny  the  withholding  of  the  possession  from  the  plaintiff, 
thereby  admitting  his  title.  Corwin  v.  Corwin,  9  Barb.  S.  C.  219  ; 
Van  Santvoord's  PL  249. 

The  defense  must  be  either  general  or  special;  it  can  not  be 
both.  The  general  denial  puts  in  issue  every  allegation  of  the 
petition,  as  fully  as  the  special  denial  could.  The  specific  denials 
are,  therefore,  in  such  a  case  unnecessary  and  redundant.  Den- 
nison  v.  Dennison,  9  Pr.  246.  So  the  denial  must  not  be  in  alter- 
native form  ;  the  denial  must  be  general  or  specific.     8  Pr.  193. 

Where  the  denial  is  specific,  and  takes  issue  on  an  immaterial 
matter,  the  plaintiff  may  either  ask  for  a  judgment,  notwithstand- 
ing the  answer,  or  move  to  strike  out  the  answer,  as  frivolous  and 
redundant.  Generally,  where  the  answer  is  insufficient — that  is, 
where,  admitting  it  to  be  true,  the  plaintiff  is  still  entitled  to  re- 
cover— he  may  apply  for  judgment  on  the  ground  of  the  insuffi- 
ciency of  the  answer;  but  the  answer  must,  of  course,  be  palpably 


ANSWER.  177 

so ;  otherwise,  the  objection  should  be  made  in  some  other  form. 
6  Pr.  355 ;  Van  Santvoord's  PL  251. 

It  is  a  very  important  question  to  be  settled,  how  far  these  gen- 
eral denials  extend.  By  the  old  rules  of  pleading,  defenses  could 
not,  in  many  cases,  be  set  up  unless  specially  pleaded ;  such  as 
coverture.  But  it  would  now  seem  that,  under  the  code,  the  de- 
fendant has  a  right  to  deny  every  material  allegation  of  the  peti- 
tion ;  and  hence  that  he  has  a  right  to  disprove  the  truth  of  that 
allegation.  For  instance,  where  the  suit  is  on  a  note,  the  defend- 
ant denies  the  making  of  the  note,  can  not  the  defendant  prove 
any  fact  which  goes  to  show  that  such  note  was  a  void  note  in  its 
inception  ?  Does  not  the  issue  raise  that  very  question  ?  If  the 
note  was  void,  it  never  had  any  validity ;  and  in  legal  contempla- 
tion the  defendant  never  did  promise  to  pay  the  amount  thereof. 
So,  take  the  case  of  trespass  to  lands.  The  plaintiff  avers  that  the 
defendant  broke  and  entered  his  close ;  the  defendant  denies  gen- 
erally. This  puts  in  issue  the  possession  of  the  plaintiff,  and  the 
defendant  may  disprove  that  possession  ;  but  if  he  wishes  to  show 
title  out  of  the  plaintiff,  he  must  plead  it  specially. 

Within  the  principle  laid  down,  that  whatever  goes  directly  to 
controvert  or  disprove  a  material  allegation  in  the  plaintiff's  com- 
plaint may  be  given  in  evidence  under  a  general  or  specific  denial 
of  such  allegation,  it  is  presumed  that  any  fact,  going  to  show  the 
contract  actually  void,  may  be  given  in  evidence  under  such  denial. 
Thus,  for  example,  a  contract  for  the  sale  of  lands,  unless  in  writ- 
ing, is  void,  by  the  statute  of  frauds.  In  an  action  on  such  a  con- 
tract, the  defendant  may  deny  generally  the  plaintiff's  case  as 
made  in  the  petition,  or  he  may  specifically  deny  that  he  entered 
into  or  made  such  a  contract;  and  on  this  issue  the  plaintiff  must 
be  held  to  prove  a  legal  contract,  a  binding  contract,  and  hence  a 
contract  in  writing.  So  if  a  contract  is  obtained  by  duress,  can  not 
this  fact  be  investigated  under  a  general  or  special  denial  of  the 
making  of  such  a  contract?  This  evidence  shows  that  in  law 
there  never  was  such  a  contract ;  a  contract  which  in  law  bound 
the  defendant. 

But  where  the  contract  is  only  voidable,  like  those  of  infants, 
lunatics,  etc.  the  objection  mast  he  made  by  the  answer,  or  it  will 
not  be  open  to  evidence  on  the  trial. 

Fraud  in  the  execution  of  an  agreement,  whether  by  parol,  or 
under  seal,  renders  it  void;  as  when;  one  agreement  is  fraudu- 
lently substituted  for  another,  or  fraudulently  misread.  So,  also, 
vol.  i — 12 


178  ANSWER. 


are  all  contracts  made  to  compound  a  criminal  prosecution,  or 
where  the  consideration  is  illegal ;  the  facts  constituting  the  fraud, 
or  the  illegality  of  the  consideration,  or  other  matters  going  to 
show  the  contract  or  cause  of  action  void  in  its  inception,  may,  in 
all  eases,  be  properly  alleged  in  the  answer;  but  it  is  submitted  that 
it  is  also  competent  for  the  defendant  to  show  the  facts,  on  a  gen- 
eral specific  denial,  that  such  a  contract  was  ever  made.  This,  of 
course,  would  not  apply  in  cases  of  negotiable  paper,  when  in- 
dorsed ;  because  the  indorsee  has  prima  facie  a  right  to  recover 
against  the  maker,  unless  he  can  prove  notice  to  the  indorsee  of  the 
facts  rendering  the  instrument  void.  Hence  notice  is  an  addi- 
tional element  not  involved  in  the  issue  on  the  execution  of  the 
contract. 

Such,  too,  is  the  view  of  the  law  taken  by  Mr.  Van  Santvoord  in 
his  work  on  pleading.  Van  Santvoord's  PI.  252,  et  seq.  Vide  also 
McMurry  v.  Clifford,  5  Pr.  14.  The  true  rule,  then,  would  seem  to 
be  that  under  the  general  or  special  denial  any  matter  may  be 
given  in  evidence,  which  shows  that  the  plaintiff  never  had  any 
right  to  recover  or  maintain  an  action  against  the  defendant.  This 
rule,  of  course,  applies  to  those  special  denials  which  deny  the 
very  gravamen  of  the  plaintiff's  cause  of  action  ;  a  general  denial, 
of  course,  does  this. 

What  may  be  specially  denied. — An  answer  saying  that  he  "de- 
nies that  the  said  plaintiff  is  entitled  to  the  sum  of  money  demanded 
in  this  action,  or  any  part  thereof,"  is  bad.  Drake  v.  Cock  croft, 
1  Abb.  203;  S.  C,  10  How.  377;  4  E.  D.  Smith,  34,  39.  An  answer 
averring  that  the  plaintiffs  are  not  joint  owners  of  the  property  is 
material  and  new  matter  requiring  a  reply.  Walrod  v.  Bennett,  6 
Barb.  144.  In  an  action  for  the  conversion  of  personal  property,  the 
value  of  the  property  is  not  traversable  matter,  and  must  be  proved, 
whether  denied  or  not.  Connose  v.  Farrell,  2  E.  D.  Smith,  314 ; 
McKensie  v.  Farrell,  4  Bosw.  173;  Hackett  v.  Bichards,  3  E.  D. 
Smith,  13;  S.  C,  13  N.  Y.  138;  Woodruff  v.  Cook,  25  Barb.  505. 
The  defendant  may  always  prove  the  true  value  of  the  property 
on  the  trial.  lb.  And  where  the  petition  on  a  note  gives  credit 
for  part  payment,  that  is  not  an  issuable  fact.  Hodgins  v.  Han- 
cock, 14  Mee.  &  Wels.  120,  Alderson,  B.  When  it  is  said  that 
you  may  traverse  any  substantial  allegation,  that  must  be  under- 
stood to  be  some  allegation  material  to  the  maintenance  of  the 
action.  But  can  it  be  said  to  be  material,  when  a  man  goes  for  the 
residue  of  a  demand,  to  deny  that  he  was  paid  the  former  part? 
The  declaration  would  be  good,  although  the  allegation  of  part 


ANSWER.  179 

payment  were  struck  out.  Under  our  decisions,  that  a  claim  is 
extinguished  by  the  bar  of  the  statute,  such  an  averment  made  in 
the  petition  to  avoid  the  statute  would  be  material ;  because,  if 
struck  out,  a  demurrer  would  lie,  as  the  claim  would  appear  to  be 
barred.  But  where  the  question  is  simply  one  as  to  how  much 
has  been  jiaid,  then  no  issue  can  be  taken  on  the  admitted  pay- 
ment. If  more  is  claimed  to  be  paid,  the  answer  must  set  up  the 
payment  as  claimed  by  the  defendant. 

In  an  action  for  goods  sold  and  services  rendered,  an  answer, 
which  denied  the  value  of  the  services,  was  held  to  raise  a  material 
issue.  Gregory  v.  Wright,  11  Abb.  417.  An  allegation  of  value, 
however,  need  not  be  denied ;  indeed,  should  not  be  denied.  McKen- 
sie  v.  Farrell,  4  Bosw.  193.  Nor  is  the  allegation  of  damages  a  tra- 
versable fact,  nor  does  a  failure  to  deny  admit  the  amount ;  and  on 
default,  the  plaintiff  must  prove  his  damages.  Gilbert  v.  Bounds,  14 
How.  46.  An  allegation  in  answer  that  the  defendant  never  gave 
the  note  to  plaintiff,  is  a  denial  of  the  allegation  in  the  petition  that 
the  defendant  made  the  note,  so  far  as  making  includes  delivery, 
and  also  of  the  further  allegation  that  the  defendant  delivered  the 
note  to  plaintiff.  Sawyer  v.  Warner,  15  Barb.  282.  Circumstances 
of  aggravation  are  not  traversable.  Gilbert  v.  Beynolds,  14  How. 
46.  Nor  are  averments  of  special  damages  traversable,  Molony 
v.  Dows,  15  How.  261;  S.  C.,  2  Hilt.  247;  unless  they  are  the  gist 
of  the  action,  and  then  a  general  denial  would  be  proper.  Per- 
ring  v.  Harris,  2  Mood.  &  Bob.  5. 

Every  fact  impliedly  averred  in  the  petition  may  be  traversed 
by  the  answer,  the  same  as  if  averred  expressly,  Prindle  v.  Ca- 
ruthers,  15  N.  Y.  425,  see  also  41  N.  Y.  116;  Haight  v.  Holley,  3 
Wend.  258;  Chambers  v.  Jones,  11  East,  406;  Lord  v.  Chasebo- 
rough,  4  Sandf.  697;  and  if  not  so  traversed,  it  is  admitted.  Ar- 
nold v.  Conklin,  25  N.  Y.  470.  In  trespass  alleged  on  a  particular 
day,  if  the  defendant  justifies  a  trespass  on  a  different  day,  he 
should  deny  that  he  was  guilty  on  the  day  stated  in  the  petition; 
and  this  can  be  done  by  adding  to  the  plea  of  justification  the  old 
form  of  traverse,  to  wit:  "  Without  this,  that  he  was  guilty  of  said 
trespass  on  the  said         day  of  in  petition  mentioned,  or  on  any 

other  day  than  on  the  day  herein  mentioned."  So  where  the  action 
was  for  negligence  in  leaving  a  hole  open  into  which  plaintiff 
fell,  an  answer  denying  '-that  the  plaintiff,  without  any  fault  or 
want  of  care  <>n  his  part,  <li<l  fall  therein,"  was  held  to  put  in  issue 
both  the  falling  and  tlw  exercise  of  proper  care  by  the  plaintiff. 
Wall  v.  Buffalo  Water-works  Co.,  18  N.  Y.  119 ;  Livingston  v.  Ham- 


180  ANSWER. 

mer,  7  Bosw.  670.  Where  written  or  other  contracts  are  set  forth 
in  a  petition,  if  the  defendant  claims  that  they  are  not  correctly 
Btated,  he  must  deny  the  allegations  of  the  petition,  or  that  he  ever 
made  the  agreement  set  forth  in  the  petition.  Where  there  is  a 
written  agreement,  the  pleader  can  make  no  averment  contrary  to 
the  legal  effect  of  the  instrument.  Any  such  averment  is  a  nullity. 
United  States  v.  Thompson,  1  Grail.  388.  So,  too,  where  the  peti- 
tion alleges  the  execution  of  a  hond  setting  forth  the  condition  and 
alleging  the  execution  of  a  mortgage  as  collateral  security  for  the 
same  debt,  with  the  same  condition  as  is  in  the  bond,  an  answer 
alleging  the  words  of  the  condition,  as  stated  in  the  petition,  and 
averring  that  it  was  not  contained  -in  the  mortgage,  is  not  a  denial 
that  such  was  in  substance  the  condition  of  the  mortgage.  The 
correct  method  for  defendant  to  have  brought  the  question  which 
he  wished  to  raise  before  the  court,  was  to  set  out  the  mortgage 
verbatim,  and  then  to  have  stated  the  matter  in  avoidance,  which, 
upon  his  construction  of  the  mortgage,  would  have  barred  the 
action,  or  he  might  have  denied  the  execution  of  the  alleged  mort- 
gage. Either  of  these  methods  would  have  raised  the  question  of 
law  arising  upon  the  instrument ;  but  an  averment  that  a  certain 
clause  is  not  contained  in  the  mortgage,  without  giving  its  actual 
language,  does  not  afford  sufficient  data  for  determining  its  legal 
effect.     Simon  v.  Dunn,  15  JS".  Y.  498 ;  S.  C,  8  How.  16. 

A  positive  denial  of  fraud  in  an  answer  will  not  prevail  against 
admissions  in  the  same  pleading  of  facts,  which  show  that  the 
transaction  was  fraudulent.  Robinson  v.  Stewart,  10  N.  Y.  189 ; 
Storer  v.  Coe,  2  Bosw.  662;  JVLanico  v.  New  York  Dry  Dock  Co.,  3 
Edw.  Ch.  Rep.  143. 

What  may  be  offered  in  evidence  under  a  general  denial. — Where 
the  petition  set  out  an  agreement  for  services  at  fifteen  dollars  per 
week,  and  then  averred  that  defendant  was  indebted  in  the  sum  of 
$333.07,  being  the  balance  remaining  due,  after  sundry  payments 
made  by  the  defendant  to  the  plaintiff,  and  a  general  denial  was 
interposed,  the  court  held  that  on  this  issue  the  defendant  was 
authorized  to  prove  payments  made.  Quin  v.  Lloyd,  41  N.  Y.  349. 
This  decision  seems  to  be  founded  on  the  fact  that  the  plaintiff  de- 
clared for  $333.07,  balance  of  a  larger  sum;  a  denial  of  the  petition 
raised  the  question  how  much  was  due ;  hence  on  that  issue  pay- 
ment was  material.  This  case  is  distinguished  from  the  case  of 
McKyring  v.  Bull,  16  N.  Y.  297,  though  it  would  seem  hardly 
ground  for  any  distinction.  The  English  plea  of  never  indebted 
requires,  if  the  indebtedness  is  admitted,  that  payments  should  be 


ANSWER.  181 


specially  pleaded,  and  this  mode  of  pleading  seems  more  consistent 
with  the  code,  and  more  intelligible  and  logical.  The  first  denies 
the  existence  of  the  debt  at  any  time ;  the  second,  admitting  the  debt, 
shows  facts,  happening  subsequently,  which  show  the  indebtedness 
extinguished. 

In  an  action  for  the  conversion  of  personal  property,  a  general 
denial  puts  in  issue  both  the  conversion  and  plaintiff's  title  to  the 
property ;  and,  under  it,  evidence  to  disprove  plaintiff's  title  is  ad- 
missible.    Eobinson  v.  Frost,  14  Barb.  536. 

In  an  action  to  recover  damages  for  a  wrongful  conversion  of 
personal  property,  the  complaint  alleged  that  at  the  time  of  the 
conversion  the  plaintiff  was  the  owner,  and  entitled  to.  the  imme- 
diate possession  of  said  property;  the  answer  denied  that  at  the 
time  of  the  alleged  conversion  the  plaintiff  was  the  owner  and  en- 
titled to  the  immediate  possession  thereof.  It  was  held  that  under 
this  denial  the  plaintiff's  title  was  put  in  issue,  and  that  it  was 
competent  for  the  defendant  to  show  title  vested  in  a  third  person. 
Davis  v.  Happoch,  6  Duer,  254.  So  in  a  real  action  under  the  issue 
raised  by  a  general  denial,  the  defendant  may  introduce  evidence 
showing  title  out  of  the  plaintiff  and  in  a  third  person.  Baynor 
v.  Timerson,  46  Barb.  518.  But  in  an  action  of  trespass  to  real 
estate,  the  petition  being  in  the  usual  form,  a  general  denial  admits 
the  plaintiff's  title.  Squires  v.  Seward,  16  How.  478 ;  Althouse  v. 
Bice,  4  E.  D.  Smith,  347  ;  Ferris  v.  Brown,  3  Barb.  105. 

Where  the  action  is  simply  for  a  quantum  meruit,  evidence  may 
be  given  under  a  general  denial,  showing  that  the  work  was  un- 
skillfully  done,  or  was  worth  less  than  the  amount  claimed.  Eay- 
mond  v.  Eichardson,  4  B.  D.  Smith,  171 ;  Bellinger  v.  Craigue,  31 
Barb.  534;  S.  C.  approved,  Gates  v.  Preston,  41  N.  Y.  113,  116. 
The  rule  is  different  where  there  is  a  contract  price.  Kendall  v. 
Vallejo,  1  Cal.  371.  Matters  in  mitigation  in  Ohio  may  be  given 
in  evidence  on  an  inquiry  of  damages,  or  on  a  general  denial. 
Bush  v.  Critchfield,  5  Ohio,  109,  113;  Wilson  v.  Apple,  3  Ohio,  270; 
Dewitt  v.  Greenfield,  5  Ohio,  225  ;  Fisher  v.  Paterson,  14  Ohio,  418, 
424;  Haywood  v.  Foster,  16  Ohio,  88;  Stearns  v.  Cox,  17  Ohio,  590; 
Van  Derver  v.  Sutphen,  5  Ohio  St.  293 ;  Eeynolds  v.  Tucker  and 
wife,  6  Ohio  St.  516.  Such  is  the  rule  everywhere,  I  believe,  save 
in  the  State  of  New  York-. 

In  an  action  for  malicious  prosecution,  averring  want  of  proba- 
ble cause,  a  genera]  denial  puts  that  fact  in  issue.  Eost  v.  Harris, 
12  Abb.  4  Hi ;  Badde  v.  Euckgaber,  3  Duer,  684;  Simpson  v.  McAr- 
thur,  16  Abb.  202.     So  to  an  action  charging  defendant  with  keep- 


182  ANSWER. 


ing  a  ferocious  dog,  a  general  denial  was  hold  sufficient  to  allow 
the  admission  of  evidence  showing  defendant's  want  of  knowledge 
as  to  the  ferocious  character  of  the  dog.  Hogan  v.  Sharpe,  7  Car. 
&  Payne,  755. 

The  general  denial  allowed  by  the  code,  corresponds  very  nearly 
to  the  general  issue  in  actions  of  assumpsit,  debt,  and  tort  at  com- 
mon law  ;  it  raises  the  question  of  liability  on  the  case  made  in  the 
petition.  McKyring  v.  Bull,  16  N.  Y.  297.  Its  effect  is  to  cast  the 
burden  of  proof  on  the  plaintiff,  and  if  the  necessary  evidence  is 
given,  and  the  answer  contains  only  a  general  denial,  the  plaintiff 
is  entitled,  of  course,  to  a  verdict  and  judgment.     Texier  v.  Gouin, 

5  Duer,  283.  So  under  a  general  denial,  a  distinct  affirmative  de- 
fense can  not  be  given  in  evidence.  A  party  in  such  a  case  is  lim- 
ited to  a  contradiction  of  the  plaintiffs  proof,  and  to  the  disproval 
of  his  case.     Beaty  v.  Swarthout,  32  Barb.  293. 

No  defense  which  confesses  and  avoids  the  cause  of  action,  can  be 
given  in  evidence  as  a  defense  under  a  general  denial.  McKy- 
ring v.  Bull,  16  N.  Y.  297.  Where  a  petition  alleges  a  cause  of  ac- 
tion existing  by  virtue  of  a  particular  statute,  an  objection  to  the 
validity  of  such  statute,  which  is  not  apparent  upon  the  act  itself, 
can  not  be  taken  under  a  general  denial ;  it  should  be  distinctly 
set  forth  in  the  pleading.  Darlington  v.  Mayor,  etc.,  of  New  York, 
31  N.  Y.  164;  S.  C,  28  How.  352. 

Under  a  general  denial,  the  defendant  can  not  insist  that  the 
plaintiff  has  not  a  legal  capacity  to  sue,  where  that  fact  does  not 
appear  on  the  face  of  the  petition,  Dellage  v.  Parks,  31  Barb.  132 ; 
Calif.  Steam  Nav.  Co.  v.  Wright,  8  Cal.  585 ;  or  that  there  is  a  de- 
fect of  parties  plaintiff.  Abbe  v.  Clark,  31  Barb.  238.  So  in  an 
action  of  trespass,  that  he  had  a  license  to  enter  on 'the  premises, 
Haight  v.  Badgeley,  15  Barb.  499  ;  nor  in  an  action  for  conver- 
sion can  he  show  a  license.  Beaty  v.  Swarthout,  32  Barb.  293. 
Nor  on  such  denial,  in  an  action  for  conversion,  can  the  defendant 
show  a  special  property  in  himself  to  the  goods,  Graham  v.  nar- 
rower, 28  N.  Y.  165  ;  nor  can  one  defendant  in  the  same  action  prove 
that,  as  sheriff,  he  levied  upon  the  property  before  plaintiff  set  up 
any  title.  lb.  Payment  can  not  be  proved  under  a  general  de- 
nial, Morford  v.  Davis,  28  N.  Y.  481 ;  Fay  v.  Grimstead,  16  Barb.  321 ; 
Gould  v.  Segee,  5  Duer,  260;  Field  v.  Mayor,  etc.,  of  New  York, 

6  N.  Y.  189  ;  Collins  v.  Packer,  21  Barb.  275  ;  nor  that  the  time  has 
been  extended  and  not  yet  expired.  16  N.  Y.  297.  So  of  coverture, 
Pastreo  v.  Gavelle,  4  E.  D.  Smith,  425  ;  Newell  v.  Solomons,  22 
Barb.  647  ;  nor  that  there  has  been  an  award  or  recovery  for  the 


ANSWER.  183 

same  cause,  Brazill  v.  Isham,  12  N.  Y.  17;  Hendricks  v.  Decker, 
35  Barb.  298  ;  nor  illegality  in  contract,  Potts  v.  Sparrow,  3  Dowl. 
P.  C.  630  ;  nor  the  incorporation  of  a  domestic  corporation,  East 
River  Bank  v.  Rogers,  7  Bosw.  493  ;  Bank  of  Genesee  v.  Patckin 
Bank,  13  ~N.  Y.  309 ;  nor  that  the  plaintiff  is  not  the  real  party  in 
interest,  Jackson  v.  Whedon,  1  E.  D.  Smith,  141 ;  S.  C,  3  Code,  186  ; 
nor  that  the  suit  was  commenced  before  the  cause  of  action  ac- 
crued. Smith  v.  Holmes,  19  N.  Y.  271.  This  case  does  not  squarely 
decide  the  question  :  the  suit  was  on  a  bond,  payable  in  a  certain 
time,  with  annual  interest;  on  demurrer  the  court  held  that  if  any 
interest  was  due,  the  plaintiff  was  entitled  to  judgment  for  that. 
Under  our  practice,  the  question  would  appear  on  the  petition,  and 
could  be  reached  on  demurrer,  or  if  the  petition  was  so  drawn  as 
not  to  show  the  fact,  it  must  come  up  on  a  general  denial.  On 
that  issue  he  is  bound  to  prove  a  debt  due  and  payable,  or  he  will 
not  support  his  petition. 

These  examples  will  afford  hints  to  the  pleader  of  the  necessity 
of  being  careful  in  framing  his  issues,  if  he  does  not  want  to  fall 
into  difficult}"  in  the  progress  of  the  suit.  There  are  more  mistakes 
made  by  inserting  too  much  than  too  little  in  the  answer.  In  an 
action  at  law,  the  object  is  to  frame  a  single  and  distinct  issue,  so 
that  the  jury  may  not  misunderstand  on  what  they  have  to  pass. 
The  answer  should  never  contain  any  admissions,  as  what  is  not  de- 
nied is  admitted ;  but  in  making  admissions,  you  may  admit  too 
much,  more  than  there  is  in  the  pleadings,  and  be  compelled  to 
pay  a  bill  of  costs  to  escape  the  difficulty  the  admission  involves 
3Tour  client  in.  I  have  seen  examples  of  just  such  blundering,  and 
the  unpleasant  consequences  growing  out  of  it.  It  is  useless  to  ad- 
mit what  is  in  the  petition,  if  you  can  not  deny  it;  but  it  is  danger- 
ous to  make  admissions,  lest  you  go  beyond  the  statements  of  the 
petition,  and  find  them  turned  against  your  client,  to  his  great  in- 
jury. Every  pleader  should  understand  that  the  code  does  not  ad- 
mit of  admissions  of  facts  or  evidence  ;  but  that  what  is  not  denied 
is  for  that  case  to  be  taken  as  admitted,  and  yet  it  is  an  admission 
which  will  not  estop  him  in  any  other  action,  whereas  an  answer 
making  admissions  might  bo  used  against  him  in  another  case. 
Let  the  denial  be  general,  if  the  truth  will  admit  of  it;  if  not,  then 
frame  your  specific  denials  on  such  averments  as  the  facts  justify, 
and  make  the  denial  a  simple  and  flat  denial  of  the  particular 
averment  in  us  Ww  words  as  possible.  If  such  care  was  taken, 
pleadings  would  be  much  shorter  than  in  fact  they  are,  and  more 
intelligible  to  the  court  and  the  jury. 


184  ANSWER. 


An  answer  which  avers  that  the  plaintiff  is  not  the  lawful  holder 
and  owner  of  the  note  mentioned  in  the  petition,  is  sufficient  to  ad- 
mit evidence  that  plaintiff  is  not  the  owner  or  holder,  Seeley  v. 
Engell,  13  N.  Y.  542 ;  White  v.  Spencer,  14  N.  Y.  247  ;  nor  is  it 
frivolous  to  allege  that  A  B  is,  but  that  the  plaintiff  is  not,  the  real 
party  in  interest.  Arrangaiz  v.  Trunzer,  2  Hilt.  244.  Where  the 
petition  sets  up  a  contract  which  will  be  void,  if  not  in  writing,  an 
answer  which  merely  denies  the  contract  is  sufficient.  This  was 
the  rule  in  chancery  ;  and  the  denial  compels  the  plaintiff  to 
prove  a  valid  contract.  In  such  a  case  is  it  necessary  to  plead  the 
statute  of  frauds  ?  Livingston  v.  Smith,  14  How.  490  ;  Armburger 
v.  Marvin,  4  E.  D.  Smith,  393 ;  Chaplin  v.  Parish,  11  Paige,  405  ; 
Cozine  v.  Graham,  2  Paige,  177 ;  Ontario  Bank  v.  Eoot,  3  Paige, 
478;  Harris  v.  Knickerbocker,  5  Wend.  638.  As  to  pleading  a 
want  of  consideration,  vide  Clancy  v.  Piggott,  2  Ad.  &  El.  473. 

THE  STATEMENT  OF  NEW  MATTER. 
The  statement  of  new  matter  must  be  predicated  upon  the 
existence,  at  some  time,  of  a  valid  cause  of  action.  In  actions 
on  contracts,  it  must  admit  its  execution  and  its  original  validity, 
or  to  speak  more  accurately,  that  it  was  not,  in  its  inception,  void ; 
because  a  voidable  contract  is  valid  until  avoided.  So  in  actions 
for  torts,  it  must  admit  the  trespass,  the  conversion,  the  libel,  the 
slander,  or  other  wrong  set  up.  Having  admitted  the  once  legal 
existence  of  tire  plaintiff's  cause  of  action,  the  answer  proceeds  to 
state  such  new  matter  as  shows  that,  at  the  commencement  of  the 
suit,  the  plaintiff  had  no  right  to  recover  against  the  defendant  on 
this  once  existing  cause  of  action.  The  code  in  this  respect  requires 
special  pleading  beyond  what  the  old  practice  did.  Many  defenses, 
which  formerly  could  be  proved  under  the  general  issues  of  non 
assumpsit,  nil  debet,  and  not  guilty,  must  now  be  set  up  specially  in 
the  answer.  All  matters  which  assume  the  existence  of  a  legal 
cause  of  action  at  some  prior  time,  but  insist  upon  facts  which  show 
no  present  right  to  recover,  must  be  set  up  in  the  answer.  Thus, 
in  an  action  arising  on  contract,  all  matters  which  admit  that  a 
sufficient  contract  was  made,  or  that  there  was  once  a  cause  of  action, 
but  avoided  by  subsequent  matter — as  release,  parol  discharge, 
alteration  in  the  terms  of  the  contract  without  consent,  non-per- 
formance by  the  plaintiff  of  a  condition  subsequent,  contract  be- 
come illegal  or  impossible  to  perform,  insolvent  discharge  of 
defendant,  accord  and  satisfaction,  tender,  arbitrament,  former 
recovery,  higher  security  given,  statute  of  limitations,  set-off,  pay- 


ANSWER.  185 

rncnt,  performance,  infancy — must  be  set  up  in  the  answer ;  also,  in 
an  action  for  a  wrong  or  injury,  all  matters  which  admit  the  com- 
mission, but  justify  or  excuse  the  act — as  in  trespass,  distress  for 
doing  damage,  license,  right  of  way,  inevitable  necessity,  title  in  a 
third  person — and  all  matters  showing  a  discharge,  must  be  so  set 
up.  So  also  must  the  facts  which  show  that  plaintiff  has  no  legal 
capacity  to  sue,  that  the  court  has  no  jurisdiction  of  the  action, 
that  another  action  is  pending,  where  these  facts  do  not  appear  on 
the  face  of  the  plaintiff's  petition.  Or  to  state  the  rule  in  brief 
terms,  whenever  the  defendant  can  not  deny  the  facts,  or  some 
material  one  of  them,  which  the  plaintiff  alleges  in  his  petition,  he 
can  defend  only  by  new  facts  to  be  by  him  set  up  in  his  answer. 

What,  then,  must  be  the  legal  effect  of  these  new  facts,  of  this 
new  matter,  which  the  defendant  can  set  up  in  his  answer?  "We  at 
present  lay  out  of  consideration  the  subjects  of. set -off  and  counter- 
claim, as  they  are  not  legitimately  defenses,  in  the  strict  technical 
meaning  of  that  term  as  used  in  the  code.  They  are  strictly  cross- 
actions,  and  justify  a  finding  for  both  parties,  and  a  judgment  in 
fav<>r  of  the  one  to  whom  an  excess  is  found  due.  They  do  not 
defeat  the  plaintiff's  cause  of  action;  they  meet  the  plaintiff's  claim 
by  one  in  favor  of  the  defendant  against  the  plaintiff,  and  ask  that 
both  causes  may  be  tried  at  the  same  time,  and  judgment  be  given 
only  for  the  party  to  whom  any  balance  may  be  found  coming. 
But  the  new  matter  we  now  are  to  treat  of,  is  such  matter  as  shows 
that  the  plaintiff  has  no  right  to  recover  on  the  cause  of  action 
stated  in  his  own  petition.  It  contains  no  new  cause  of  action  in 
favor  of  the  defendant  against  the  plaintiff;  it  goes  directly  to 
defeat  the  case  made  by  the  plaintiff.  McKyring  v.  Bull,  16  N.  Y. 
297. 

The  code  divides  the  new  matter  into  three  classes: 

1.  Such  as  constitutes  a  defense. 

2.  Such  as  constitutes  a  counterclaim. 

3.  Such  as  constitutes  a  set-off. 

And  we  will  consider  these  in  their  order. 

1.  Under  this  head  it  is  not  every  matter  that  can  be  set  up  in 
an  answer,  the  matter  set  up  must  constitute  a  defense  to  the  plaint- 
iff's cause  of  action.  Admitting  it  to  be  true,  it  must  show  that 
tin-  plaintiff  baa  n<>  right  to  recover  in  this  action  against  the  de- 
fendant. In  the  language  of  the  books,  it  must  be  such  matter  as 
will  bar  the  right  of  the  plaintiff  to  recover  for  so  much  as  the  an- 
swer covers.     Marvin,  1\  J.,  in  Houghton  v.  Townscnd,  8  Pr.  441, 


186  ANSWER. 


says  :  "  It  is  quite  clear  that  the  word  "  defense  "in  the  code  is  not 
used  in  its  legal,  technical  sense  [ho  had  shown  this  to  be  denial']. 
It  has  no  application  to  that  part  of  the  answer  which  contains 
denial  only  of  the  facts  stated  in  the  complaint ;  but  it  is  used  in 
reference  to  the  statement  of  new  matter ;  and  it  must  be  such  new 
matter  as  constitutes  a  defense;  and  the  question  is,  must  it  be  mat- 
ter which  constitutes  a  complete  bar  to  the  action?  In  common 
parlance  the  word  "  defense  "  is  used  as  applicable  to  any  facts  which 
defeat  the  action  wholly  or  in  part.  These  new  facts,  then,  can 
not  be  set  up  unless  in  law  they  are  an  answer  to  the  plaintiff's 
cause  of  action,  and  a  bar  to  it."  Graham  v.  Stone,  6  Pr.  15 ; 
Smith  v.  Wait,  7  Pr.  227. 

Must  the  facts  cover  the  whole  cause  of  action?  or  can  they  be 
set  up  if  they  show  only  a  partial  bar  to  the  same?  We  suppose 
that  the  answer  must  cover  the  whole  cause  of  action  ;  but  it  may 
do  it  by  one  set  of  facts  as  to  a  part,  and  by  another  as  to  the 
residue.  For  instance:  The  plaintiff  declares  for  a  sum  of  money; 
the  defendant  can  plead  payment  as  to  a  part,  and  tender  as  to  the 
residue  ;  or  a  payment  of  part  and  a  release  of  the  balance.  So  he 
may  plead  payment  as  to  a  part,  tender  as  to  another  part,  and  not 
indebted  beyond  the  sums  so  paid  and  tendered.  In  such  cases, 
the  answer  covers  the  whole  cause  of  action,  and  shows  that  the 
plaintiff  has  no  right  of  recovery.  The  answer,  however,  must  be 
special,  averring  that,  as  to  such  a  portion  of  the  sum  demanded, 
he  has  paid  it ;  that  as  to  such  a  part  of  it,  he  has  tendered  it  be- 
fore suit  brought ;  and  that  as  to  the  residue  thereof,  he  does  not 
owe  the  same  to  the  said  plaintiff.  This  view  of  the  code  is  taken 
in  the  case  of  Houghton  v.  Townsend,  8  Pr.  441.  "I  do  not  under- 
stand," says  Marvin,  P.  J.,  in  that  case,  "that  payment  or  set-off 
can  now  be  shown,  when  the  answer  is  simply  a  denial  of  the  com- 
plaint. A  partial  payment  or  set-off  is,  in  common  parlance,  a 
defense  pro  tanto ;  and  how  is  the  defendant,  by  his  pleading,  to 
avail  himself  of  such  defense?  In  the  present  case,  the  plaintiff 
argues  that  the  defendant  should  have  pleaded  payment  as  formerly, 
that  is,  full  payment,  thus  stating  facts  which  would  bar  the  action  ; 
and  he  refers  to  authorities  to  show  that  under  such  pleadings,  if 
the  defendant,  on  the  trial,  proved  the  payment  of  any  sum,  he 
would  succeed  upon  the  issue,  unless  the  plaintiff  proved  a  larger 
sum  due,  and  that  he  would  then  only  recover  the  balance.  See 
5  Hill.  290,  393.  But  is  this  the  system  of  the  code?  Was 
this  the  design  ?  The  commissioners  say  :  '  We  propose  that  the 
plaintiff  shall  state  his  case  according  to  the  facts,  etc. ;  that  the 


ANSWER.  187 

defendant  shall  by  his  answer  point  out  his  defense  distinctly.'  It 
was  also  an  important  part  of  the  system  of  the  commissioners, 
that  pleadings  should  be  verified.  Could  it  have  been  intended,  in 
a  case  where  the  defendant  owed  the  plaintiff  a  thousand  dollars, 
and  had  only  paid  him  on  account  of  such  debt  one  hundred  dol- 
lars, that  he  should  when  sued  (the  whole  $1,000  being  claimed)  be 
compelled  to  answer  and  state  generally,  as  new  matter,  that  he 
had  paid  the  debt  or  demand,  and  then  swear  to  the  truth  of  his 
answer,  when  he  knew  that  he  still  owed  the  plaintiff  $900  of  the 
original  demand?  I  do  not  think  such  was  the  intention."  It 
would  seem  that  there  could  be  no  doubt  as  to  the  absolute  neces- 
sity of  such  a  mode  of  defense  under  a  code  which  requires  all 
pleadings  to  be  under  oath.  So  a  party  may  plead  payment  as  to 
part,  and  offer  j  udgment  as  to  the  residue. 

Where  the  petition  contains  more  than  one  count  or  cause  of  ac- 
tion, the  defendant  may  plead  to  the  whole  action,  or  he  can  plead 
to  each  count  separately.  In  so  doing  his  pleas  must  be  an  answer 
to  all  he  undertakes  to  answer.  If  they  are  an  answer  to  one 
count,  and  not  to  another,  they  will  be  bad  if  the  answer  assumes 
to  answer  the  whole  action.  Where  the  same  defense  lies  to  all  the 
causes  of  action,  the  answer  may  cover  the  whole  action  by  a 
single  plea,  or  statement  of  facts  constituting  a  defense  ;  but  where 
separate  and  distinct  defenses  lie  against  the  several  causes  of  ac- 
tion, there  the  answer  must  limit  and  confine  each  plea  or  state- 
ment to  the  particular  count  to  which  it  applies. 

Wliat  is  the  New  Matter  ? 

We  do  not  propose  to  go  into  the  various  defenses  which  may  be 
set  up.  Where  the  action  is  founded  on  a  common-law  right,  all  de- 
fenses which  could  have  been  specially  pleaded  at  common  law, 
can  and  must  be  so  pleaded  under  the  code.  Hence  so  far  as  such 
causes  of  action  are  concerned,  a  reference  to  Chitty's  Pleading 
will  give  all  the  inlbrmation  required.  It  would  extend  the  plan 
of  this  work  too  far,  to  undertake  to  write  a  treatise  on  the  legal 
rights  of  parties,  and  to  point  out  what  does  or  does  not  amount 
to  u  bar  to  u  cause  of  action  once  existing. 

But  the  code  introduces  a  new  feature  into  the  defense  of  a  legal 
action;  the  defendant  may  set  up  an  equitable  defense  to  a  legal 
claim.  Whric  tli<-  plaintiffs  claim  is  one  of  an  equitable  charac- 
ter, there  such  a  defense  was  always  admissible,  as  well  as  any 
legal  defense  which  might  exist.  It  is  only  where  the  claim  of  the 
plaintiff  is  a  legal  one,  that  any  mistake  can  be  made  as  to  the  pur- 


1S8  ANSWER. 


port  of  this  new  species  of  defense.  Lot  us  then  consider  the  sub- 
ject in  this  single  aspect  at  present. 

The  equitable  matters  to  be  set  up  must  constitute  grounds  of 
defense.  They  must  go  to  defeat  the  plaintiff's  right  to  recover  on 
that  cause  of  action.  It  is  not,  therefore,  every  equitable  claim 
which  the  defendant  has  against  the  plaintiff  that  can  be  set  up  ; 
it  is  only  such  an  equitable  claim  as  will  defeat  the  plaintiff's  recov- 
ery. It  may  be  illustrated  by  reference  to  the  old  practice.  A 
brought  a  suit  on  a  note  against  B  and  C,  on  which  C  was  surety. 
C  was  compelled  to  go  into  equity  to  obtain  an  injunction  against 
the  plaintiff,  if  he  wished  to  obtain  the  benefit  of  acts  which  in 
equity  released  him.  Now  he  can  plead  these  facts  directly  to  the 
action,  and  if  found  true  they  will  prevent  a  recovery.  The  rule 
may  be  thus  stated  :  Central  Ins.  Co.  v.  Nat.  Prot.  Ins.  Co.,  14  N. 
Y.  85,  80. 

In  all  cases  where,  upon  the  facts  to  be  stated,  a  court  of  equity 
would  have  granted  a  perpetual  injunction  against  the  collection 
of  the  plaintiff's  claim,  the  defendant  may  set  up  such  facts  as  a 
defense  to  the  action  itself.  But  unless  the  new  equitable  matter 
goes  to  defeat  the  plaintiffs  right  to  recover,  in  part  or  in  whole, 
it  can  not  be  set  up  as  an  equitable  matter  in  defense ;  because  it 
is  no  bar  to  any  part  of  the  plaintiffs  claim.  It  must  be  some 
matter  which  shows  that  in  equity  the  plaintiff  had  no  right  to 
bring  his  action.  If  the  matter  sought  to  be  set  up  presupposes  an 
existing  right  of  action  in  the  plaintiff,  and  seeks  to  get  rid  of  it 
by  some  equitable  claim  which  the  defendant  has  against  the  plaint- 
iff, it  can  not  be  set  up  as  a  matter  of  defense;  whether  it  can  as 
matter  of  counterclaim,  or  not,  is  a  question  hereafter  to  be  exam- 
ined and  need  not  be  discussed  here.  If  the  new  matter  set  up  re- 
quires the  action  of  the  court  affii'matively,  in  behalf  of  the  de- 
fendant, to  render  it  available  in  the  action,  then  it  can  not  be  mat- 
ter of  defense,  as  that  term  has  already  been  expounded  and  defined. 
It  may  be  a  counterclaim  ;  but  it  is  no  matter  of  defense.  As 
where  an  action  is  brought  to  recover  real  estate  which  the  defend- 
ant has  made  a  contract  to  purchase.  Here,  if  he  has  not  the  title, 
he  can  not  defend  the  action ;  though  he  may  have  a  cause  of  ac- 
tion against  the  plaintiff  to  compel  him  specifically  to  execute  the 
agreement.  In  such  a  case  the  defendant  must  become  an  actor, 
he  must  obtain  a  judgment  against  the  plaintiff  on  his  equitable 
demand,  before  it  will  avail  him  as  any  defense  to  the  plaintiff's  ac- 
tion. This  may  be  a  counterclaim  ;  it  is  no  new  matter  constitu- 
ting an  equitable  defense.     To  this  extent  an  equitable  defense 


ANSWER.  189 

may  be  made  available  to  defeat  an  action  founded  on  a  legal  right 
and  no  further. 

The  question  here  presented  is  one  of  great  practical  importance 
to  the  right  construction  of  the  code,  and  its  harmony  in  practice. 
Equitable  defenses  can  now  be  interposed  in  actions  at  law.     This 
provision  was  first  introduced  in  England  in  1854. by  the  common- 
law  procedure  act.     By  that  act  courts  of  law  were  authorized  to 
entertain  jurisdiction  of  equitable  defenses.     Our  code,  section  93, 
enacts  that  -the  defendant  may  set  forth  in  his  answer  as  many 
grounds  of  defense,  counter-claim,  and  set-off  as   he  may  have, 
whether  they  be  such  as  have  been  heretofore  denominated  legal 
or  equitable,  or  both."     It  will  thus  be  seen  that  the  English  act 
and  the  code  employ  the  same  terms  substantially;  it  is  a  defense, 
and  it  is  to  be  an  equitable  defense.     This  was  a  term  well  under- 
stood when  the  act  of  1854  was  passed  in  England,  and  the  code 
in  this  country.     The  English  act  had  received  a  definite  and  dis- 
tinct construction  before  the  same  provision  was  adopted  in  the 
United  States ;  and  it  is  a  rule  of  construction  that,  in  adopting 
the  statutes  of  England,  or  of  other  States,  we  also  adopt  the  con- 
struction that  has  been  put  upon  them  by  the  courts  of  that  country 
or  state.     Pennock  &  Sellers  v.  Dialague,  2  Peters,  1.     When  one 
State  enacts  a  statute  of  another  State,  it  is  presumed  to  adopt  the 
construction  which  that  statute  has  received  by  uniform  series  of 
judicial   expositions    in    the   latter   State.     Campbell  v.   Quinlin, 
3  Scam.  288.     Such  is  the  rule  of  construction  to  be  applied  to  the 
code,  and  by  it  the  construction  given  to  the  same  provision  in  Eng- 
land is  to  be  given  to  it  here.     Now,  the  English  courts  say  that 
this  language  means  that  that  only  can  be  pleaded,  as  if  proved, 
would  be  a  simple  bar  to  the  action,  and  entitle  the  defendant  to 
the  common-law  judgment,  "that  the  plaintiff  take  nothing  by  his 
writ,  and  that  the  defendant  go  hence  without  day,"  which  will,  in 
effect,  be  equivalent  to  a  perpetual  injunction  in  a  court  of  equity. 
If  the  facts  stated  by  way  of  equitable  defense  are  proved,  I  can 
not  doubt  but  that  a  court  of  equity  would  grant  a  perpetual  in- 
junction.    Per  Mellor,  J.,  Jeffs  v.  Day,  L.  R,  1  Q.  B.  372.     So  in 
Wadehonse  v.  Farebrother,  5  E.  &  B.  277,  it  was  held  that  a  plea 
on  equitable  grounds  could  only  prevail  where,  followed  by  a  com- 
mon-law judgment,  it  would  do  complete  and  final  justice.     And 
in    Flight  v.  Gray,  :;   C.   B.,  X.  S.    320,  it   was  decided   thai   an 
equitable  defense  ia  only  admissible  where  it  sets  up  matter  in 
respect  of  which  a  court  of  equity  would  have  granted  relief  un- 
conditionally.    In   the  case  of  Mines  Royal  Societies  v.  Magnay, 


190  ANSWER. 


10  Exch.  487,  the  court  of  exchequer  refused  to  allow  the  equitable 
plea  set  up  to  be  pleaded,  on  the  ground  that  a  court  of  equity 
would  require  the  execution  by  the  defendant  of  a  valid,  surrender 
of  a  term,  as  a  condition  precedent  to  staying  the  execution,  and 
that  a  court  of  common  law  had  no  power  to  enforce  such  a  con- 
dition. In  Wood  v.  Copper  Mines  Co.,  17  C.  B.  561;  S.  C, 
84  Eng.  C.  L.  500,  590,  Jcrvis,  C.  J.,  says  :  "Without  attempting  to 
define  the  form  or  the  precise  circumstances  under  which  a  coui't 
of  law  will  admit  an  equitable  plea  to  inure  as  an  answer  to  an 
action,  it  is  plain  that,  inasmuch  as  a  judgment  for  the  defendants 
here  would  bar  the  action,  we  can  not  hold  this  to  he  a  good  equita- 
ble plea,  unless  it  discloses  a  case  in  which  a  court  of  equity 
would  grant  a  perpetual,  unqualified,  and  unconditional  injunc- 
tion. Whether  that  test  is  applicable  in  all  cases,  it  is  not  now 
necessary  to  inquire.  No  doubt,  in  this,  as  in  all  cases,  the  court 
will  not  admit  an  equitable  plea  that  would  carry  the  legal  defense 
further  than  a  court  of  equity  would  extend  its  protection  to  the 
party."  In  the  case  of  Flight  v.  Gray,  3  C.  B.,  N.  S.  320,  Cock- 
burn,  C.  J.,  said:  "Section  83,  we  think,  only  enables  the  defend- 
ant to  plead  by  way  of  equitable  defense  such  facts  as  would 
entitle  him  to  absolute  and  unconditional  relief  in  a  court  of 
equity.  It  only  applies  where  this  court  can  deal  out  the  same 
measure  of  justice  between  the  parties  as  the  court  of  equity  would 
do.  It  seems  that,  under  the  circumstances  of  the  case,  a  court  of 
equity  would  compel  the  defendant  to  do  justice;  that  is,  to  give 
the  renewed  bill,  and  pay  the  ten  per  cent,  discount,  before  they 
would  restrain  the  plaintiff's  proceedings  at  law."  In  the  case  of 
Gee  v.  Smart,  8  E.  &  B.  313,  319,  Coleridge,  J.,  says:  "The  ques- 
tion is,  however,  whether  this  is  such  a  plea  as,  under  section  83  of 
the  common-law  procedure  act,  1854,  we  are  authorized  to  receive. 
And  several  cases  have  decided  that,  to  make  it  such,  the  facts  it 
discloses  must  entitle  the  defendant  to  an  absolute  and  perpetual 
injunction  against  the  judgment  which  the  plaintiff  might  other- 
wise have  obtained  at  law.  If  our  common-law  judgment  on  the 
plea  of  the  defendant  will  not  do  final  justice  between  the  parties, 
but  the  plea  is  in  the  nature  of  a  bill  in  equity,  calling  upon  the 
court  for  that  sort  of  conditional  and  manifold  award  which  is  in 
the  nature  of  a  decree  in  equity,  and  not  a  judgment  at  law,  we 
can  not  entertain  it,  because  we  have  no  authority  to  pronounce, 
or  machinery  to  enforce  such  an  award."  The  action  in  this  case 
of  Davies  v.  Marshall,  10  C.  B.,  N.  S.  697,  'was  for  obstructing 
lights  by  erecting  a  new  house  and  raising  the  walls  higher  than 


ANSWER.  191 

the  old;  an  answer  was  interposed  that  it  was  done  with  the 
knowledge  and  acquiescence  and  consent  of  the  plaintiff;  reply- 
that  the  acquiescence  and  consent  was  obtained  by  fraud  and  mis- 
representation. A  demurrer  was  interposed  to  the  reply,  and  the 
court  held  it  a  good  equitable  reply  to  the  plea  of  estoppel,  on  the 
ground  that  it  showed  that  the  estoppel  did  not  avoid  the  party 
pleading  it,  if  it  was  obtained  by  fraud.  The  estoppel  was  an 
equitable  defense,  and  the  reply  of  fraud  was  an  equitable  avoid- 
ance of  the  equitable  plea. 

It  is  clearly  settled  by  these  cases  and  others  that  a  pleading,  to 
be  good  on  equitable  grounds,  must  be  such  as  to  show  what  would 
in  a  court  of  equity  be  a  complete  answer  to  the  claim  or  defense, 
and  would,  as  such,  afford  ground  for  a  perpetual  injunction  gi-anted 
absolutely  and  without  any  conditions.  Such  it  is  and  was  since 
the  passage  of  section  83  of  the  English  act  of  185-1,  allowing 
equitable  defenses  to  be  plead  as  a  bar  to  a  legal  action.  And  no 
other  construction  could  be  given  to  either  the  English  statute  or 
our  code.  The  matter  set  up  must  be  a  defense,  that  is,  some  fact, 
which  shows  that  the  plaintiff  ought  not  to  recover  in  any  form  or 
aspects  of  the  facts.  It  must  not  be  a  matter  where  anything  is  to 
be  done  by  the  party  pleading,  in  order  to  make  it  equitable,  that 
the  plaintiff  should  not  recover.  This  equitable  matter  then  must 
ask  for  no  relief,  but.  like  a  legal  plea,  must  in  equity  defeat  the 
right  of  the  plaintiff  to  recover  on  the  simple  statement  of  the 
facts.  If  a  court  of  equity,  before  enjoining  an  execution  on  the 
judgment,  had  to  require  the  plaintiff  in  equity,  defendant  at  law, 
to  do  any  act  whatever,  then  it  is  not  matter  of  defense,  but  matter 
on  which  a  party  might  go  into  equity,  and,  upon  doing  what  first 
in  equity  be  ought  to  do,  obtain  a  perpetual  injunction. 

Such  must  be  the  construction  of  our  code,  because  only  such 
equitable  matter  can  be  a  defense  in  the  legal  acceptation  of  that 
term.  But  it  may  be  said  that  the  English  cases  do  not  apply, 
since  our  courts  have  both  common-law  and  equity  jurisdiction. 
This,  however,  can  not  alter  the  construction  to  be  given  to  the 
same  words.  The  code  fully  recognizes  the  distinction  between 
law  ami  equity,  and  cases  founded  on  legal  principles  are  to  be 
commenced,  proceeded  in,  tried,  and  judgment  rendered  as  in 
actions  at  common  law,  and  cases  founded  on  equity  principles  are 
to  be  commenced,  the  summons  aerved,  the  case  proceeded  in,  and 
judgment  rendered,  as  formerly  in  a  suit  in  equity.  Though  the 
same  court  administers  relief  in  both  forms,  yet  the  forms  are  dif- 
ferent,  the   pleadings   different,   and    each   is  not  adapted   to   the 


192  ANSWER. 

remedy  demanded  in  the  other  form.  A  judgment  in  an  action 
for  the  recovery  of  money  only  is  still  a  judgment  for  money  only, 
and  for  nothing  else;  while  a  case  founded  on  principles  of  equity, 
and  assuming  the  forms  and  the  proceedings  of  an  old  bill  in 
chancery,  has  alone  the  flexibility  so  essential  to  relief  granted  in 
equity.  The  one  remedy  is  not  capable  of  reaching  the  relief  de- 
manded in  the  other.  It  is  not,  then,  the  fact  that  separate  courts 
administer  the  different  kinds  of  relief;  it  depends  upon  the  nature 
of  the  two  remedies,  which  are  so  unlike  and  incompatible  the  one 
with  the  other.  The  one  is  rigid  as  iron ;  the  other  flexible  as  India- 
rubber  ;  the  one  calls  for  money  only,  and  the  other  varies  to  meet 
the  thousand  variations  of  the  cases  presented. 

It  is  clear,  then,  that  the  equitable  facts,  which  can  be  pleaded  as 
a  defense  to  an  action  founded  on  legal  principles,  must  be  such 
as  the  English  courts  have  decided  they  must  be.  They  must 
present  a  complete  and  perfect  defense,  so  that  when  judgment  is 
rendered  on  such  a  plea  for  the  defendant,  complete  justice  has 
been  rendered,  as  complete  as  it  would  have  been  if  the  case  had 
been  presented  to  and  decided  by  a  court  of  equity.  As  a  defense 
the  answer  must  lead  to  such  a  result,  or  it  is  not  a  defense. 

I  now  confine  myself  to  an  equitable  defense.  I  have  no  reference 
to  what  might  have  been  done  formerly  in  equity  by  a  cross-peti- 
tion, and  now,  in  certain  cases,  under  an  answer  amounting  to  what 
was  once  a  cross-petition. 

I  might  here  refer  also  to  the  case  of  Waterlow  v.  Bacon, 
L.  R,  2  Eq.  Cas.  514,  where  relief  was  granted  in  equity,  because 
it  could  not  be  done  at  law.  The  court  held  that  after  pleading  an 
equitable  defense  at  law,  the  party  could  not  come  into  equity  on 
the  same  facts,  provided  a  court  of  law  could  give  such  relief  as  a 
court  of  equity  would  give.  Sir  E.  T.  Kenersley,  V.  C,  said  :  "  Now 
it  appears  to  me,  on  the  authorities  referred  to,  that  the  rule  on  the 
subject  is  this:  if  a  defendant  in  an  action  thinks  fit  to  plead  an 
equitable  plea,  he  can  not  come  to  this  court  for  an  injunction  to 
restrain  the  action  on  the  very  ground  which  he  has  made  the  sub- 
ject of  his  equitable  plea,  provided  always  that  case  is  of  that 
nature  and  the  form  of  the  pleading  at  law  is  such  that  the  court 
of  law  can  and  will  give  such  relief  on  the  equitable  plea,  sup- 
posing it  established,  as  this  court  will  give.  But  if  the  court  of 
law  can  not  give  such  relief,  or  if  from  the  mode  in  which  the 
pleadings  are  framed,  the  matter  of  the  equitable  plea  may  never 
come  on  for  the  decision  of  the  court  of  law,  then  this  court  will 
not  refuse  to  entertain  a  bill  for  an  injunction  to  restrain  the 


ANSWER.  193 

action,  merely  on  the  ground  of  the  plaintiff  in  equity  having 
pleaded  such  equitable  plea  in  the  action;  though,  of  course,  in  such 
case  this  court  will  deal  with  the  question  as  to  the  costs  of  the 
action,  and  especially  as  to  so  much  thereof  as  may  have  been 
caused  by  pleading  the  equitable  plea."  This  case  agrees  fully 
with  the  above  cases  at  law,  and  shows  clearly  when  a  court  of 
equity  will  take  jurisdiction  of  a  case.  In  this  case  the  plaintiff 
in  equity  had  to  do  certain  things  before  he  had  a  right  in  equity 
to  enjoin  the  action  at  law,  and  this  fact  drove  him  to  a  new  suit 
in  equity. 

Under  the  code,  whatever  facts  would  sustain  formerly  a  bill  in 
chancery  will  now  sustain  a  petition  founded  on  principles  of 
equity.  The  code  has  abolished  no  rights  of  action,  whether  at 
law  or  in  equity;  it  has  only  declared  that  all  remedies  heretofore 
existing  in  any  form  shall  be  called  a  civil  action;  but  that  the 
same  relief  shall  be  attained  by  a  civil  action,  as  was  prior  thereto 
attained  by  both  a  common-law  action  and  a  bill  in  equity.  The 
name  is  changed  ;  the  thing  is  left  as  it  was ;  and  though  the  same 
name  applies  to  both  remedies,  yet  the  remedies  remain  as  distinct 
as  they  did  before,  and  the  proceedings  in  the  two  classes  of  cases 
as  unlike  as  the  proceeding  at  law  to  the  proceedings  in  equity. 
The  same  doctrine  is  maintained  in  the  case  of  Wood  v.  Seeley, 
32  N.  Y.  105.  The  court  here  entertain  a  petition  for  an  injunc- 
tion to  restrain  the  defendant  from  suing.  It  was  claimed  that 
here  was  a  defense  to  the  action  of  the  widow  to  recover  her' 
dower,  if  one  was  brought,  and  therefore  no  action  could  be  main- 
tained on  facts  which  now  constituted  a  defense  to  the  threatened 
action.  It  was  claimed  that  such  defenses  did  not  constitute  a 
cause  of  action  :  1.  Because  mere  matter  of  defense  does  not  con- 
stitute a  cause  of  action,  except  in  equity,  where  no  legal  defense 
can  be  made  available.     1  Story's  Eq.,  sec.  684;  Murray  v.  Graham, 

6  Paige,  622;  Obourn  v.  Taylor,  5  Paige,  515;  Mitchell  v.  Oakley, 

7  Paige,  68.  But  such  distinction  has  been  removed  by  the  code 
(sec.  150) ;  an  equitable  defense  is  now  equally  available.  Dob- 
son  v.  Pearce,  2  Kern.  156;  Crary  v.  Goodman,  lb.  266;  Trop- 
hagan  v.  Trophagan,  40  Barb.  538.  Hence  a  mere  matter  of  de- 
fense is  not  now  a  good  cause  of  action  in  any  case.  Van  Sant- 
voord'B  PI.  506;  Phillips  v.  Graham,  17  N.  Y.  270;  Harman  v. 
Bemsen,  23  How.  174.  But  the  court  held  that  the  action  would 
He,  and  overruled  the  above  views  of  counsel.  This  case  goes  quite 
as  far  as  the  English  case.     There  was  a  double  aspect  to  the  peti- 

vol.  i — 13 


194  ANSWER. 

tion,  with  one  aspect  of  which  the  facts  would  not  constitute  an 
equitable  defense,  as  the  court  had  something  to  do  which  a  court 
of  law  could  not  do. 

This  distinction  between  equitable  matter,  which  constitutes  a 
defense,  and  that  which  constitutes  a  claim  for  relief,  which  relief, 
when  obtained,  may  involve  as  a  part  of  it  a  perpetual  injunction 
against  an  action,  is  very  important ;  as  upon  this  distinction  rests 
all  clearness  in  expounding  the  code,  and  in  administering  the  law 
under  it.  Unless  the  distinction  is  observed,  and  that  rigidly, 
nothing  but  confusion  can  follow,  as  we  know  from  experience. 
Where  the  new  equitable  matter  is  a  defense,  as  that  term  has  been 
defined,  it  is  to  be  tried  as  the  main  case  is  by  a  jury ;  but  where 
the  equitable  matter  is  such  as  constitutes  grounds  for  a  relief, 
which  may  involve  a  prohibition  against  the  plaintiff's  proceeding 
in  his  action,  the  answer,  if  it  can  be  raised  in  that  shape,  becomes 
a  new  petition  for  relief,  which  admits  the  plaintiff's  cause  of  ac- 
tion, and  hence  puts  an  end  to  that;  and  a  new  case  grows  up  out 
of  the  first,  which  is  a  case  for  equitable  relief,  not  a  defense  to 
the  plaintiff's  action. 

And  how  is  this  new  case  to  be  tried  ?  By  a  jury,  because  it  is 
attached  to  or  rather  issues  out  of  an  action  founded  upon  princi- 
ples of  strict  law,  or  by  the  court,  because  the  whole  case  in  dis- 
pute is  one  entirely  of  equitable  jurisdiction  ?  This  is  a  contin- 
gency the  code  has  made  no  provision  for,  and  hence  would  seem 
to  be  a  contingency  never  contemplated  by  its  authors.  The  truth 
is,  the  code  only  looks  to  equitable  matters  which  constitute  a  de- 
fense. It  nowhere  contemplates  or  provides  for  the  case  of  setting 
up  in  an  answer  grounds  for  affirmative  relief;  though  that  relief, 
when  obtained,  may  as  a  result  put  an  end  to  the  plaintiff's  further 
prosecution  of  his  action.  How  would  stand  such  a  mongrel  case? 
Here  would  be  the  plaintiff,  with  his  legal  claim,  entitled  to  a  trial 
by  jury ;  on  the  other  hand  would  be  the  defendant,  with  his  case 
in  equity,  with  which  a  jury  had  nothing  to  do.  All  issues  of  facts 
arising  in  actions  for  the  recovery  of  money,  or  specific  real  or 
personal  property,  must  be  tried  by  a  jury.  Any  issue  of  fact, 
therefore,  arising  in  such  a  case,  would  have  to  be  tried  by  a  jury, 
because  the  action  is  for  the  recovery  of  money,  or  specific  real  or 
personal  property.  And  then  this  absurdity  follows,  that  the  case 
would  be  tried  by  the  court  or  a  jury,  just  as  the  one  or  the  other 
party  first  commenced  his  action.  For  example  :  A  sells  real  es- 
tate to  B,  retaining  the  legal  title ;  a  dispute  arises  as  to  its  execu- 
tion ;  if  A  brings  an  action  to  recover  the  possession  of  the  land 


ANSWER.  195 

on  his  legal  title,  and  B  sets  up  his  contract,  the  case  must  he  tried 
by  a  jury,  as  the  issues  arise  in  an  action  to  recover  specific  real 
property  ;  but  if  B  commences  an  action  for  the  execution  of  the 
contract,  then  it  will  be  tried  by  the  court,  as  the  issues  of  fact  will 
not  arise  in  an  action  for  the  recovery  of  money,  or  specific  real 
or  personal  property.  Is  it  possible  that  the  learned  codifiers  de- 
signed or  contemplated  any  such  absurdity  ?  This  aspect  of  tho 
case  shows  pretty  clearly  that  all  that  was  meant  by  this  equitable 
matter,  whether  as  a  defense  or  counterclaim,  was  such  matter  as 
defeated  the  plaintiff's  action,  and  appertained  for  trial  to  the  same 
forum  as  the  action  itself.  If  such  is  not  the  construction  to  be 
given  to  the  code,  then  we  would  like  those  learned  improvers  to 
tell  us  what  they  did  mean.  Our  own  impression  is,  that  copying 
as  they  did  from  others,  they  would  be  as  much  in  the  fog  as  to 
the  real  import  and  meaning  of  this  provision  of  the  code  as  those 
of  us  who  are  honestly  laboring  to  work  out  something  practicable 
from  it.  Were  it  not  that  the  code  implies  more  than  it  enacts,  it 
would  be  impossible  to  get  along  a  step  with  it.  It  implies  that 
a  law  of  pleading  already  exists,  to  which  reference  can  be  had, 
and  by  which  language  is  to  be  interpreted.  The  code  only  abol- 
ishes the  forms  of  pleading,  not  principles.  Kneedler  v.  Stern- 
bergh,  10  Pr.  67.  And  it  is  this  system  of  truth  and  logic  and 
common  sense  which  underlies  the  code  that  is  our  only  safe-guide 
in  expounding  and  construing  it.  The  code  is  to  be  construed  as 
a  whole,  supposed  to  be  consistent  in  all  its  parts  ;  and  where  no 
provision  is  made  for  the  trial  of  an  action  in  a  particular  form,  it 
is  to  be  presumed  that  an  action  in  that  form  was  never  contem- 
plated, and  hence  is  not  permitted. 

As  to  what  is  new  matter,  I  will  refer  to  Gilbert  v.  Cram,  12 
How.  455  ;  Eodde  v.  Eeechgaber,  3  Duer,  684 ;  Brazill  v.  Isham,  12 
N.  Y.  17  ;  Bellinger  v.  Craigue,  31  Barb.  534 ;  41  N.  Y.  116 ;  Carter 
v.  Koczley,  14  Abb.  147 ;  Wolrod  v.  Bennett,  6  Barb:  144.  And 
what  is  not :  Eost  v.  Harris,  12  Abb.  446.  Where  a  petition  averred 
that  the  note  had  not  been  paid,  and  the  answer  averred  that  it 
had  been  paid,  it  was  held  not  new  matter  needing  a  reply.  Van 
Gieson  v.  Van  Gieson,  12  Barb.  520  ;  S.  C,  10  N.  Y.  316  ;  McKyring 
v.  Bull,  16  N.  Y.  297,304. 

New  matter  must  be  pleaded,  whether  legal  or  equitable,  and  the 
fiicta  constituting  the  defense  be  distinctly  averred,  so  that  it  shall 
distinctly  appear  on  the  face  of  the  answer  that  tho  facts  pleaded 
do  constitute  a  legal  defense  to  the  action.  Taylor  v.  Eichards,  9 
Bosw.  679  ;  Dennis  v.  Snell,  54  Barb.  411 ;  S.  C,  34  How.  467  ;  50 


196  ANSWER. 


Barb.  95  ;  Catlin  v.  Gunter,  1  Ducr,  266  ;  S.  C.,  11 N.  Y.  Leg.  Obs.201 ; 
S.  C.,  11  N.  Y.  368, 371 ;  Ayrault  v.  Chamberlain,  33  Barb.  229 ;  S.  C, 
31  N.  Y.  614;  Jacob  v.  Eenisen,  12  Abb.  390;  S.  C.,  35  Barb.  384; 
36  N.  Y.  668. 

New  matter  constituting  a  defense  must  be  contained  in  the  an- 
swer, otherwise  the  defendant  can  not  avail  himself  of  it.  Morrill 
v.  Irvin  Tin  Ins.  Co.,  33  N.  Y.  429 ;  Tilson  v.  Clark,  45  Barb.  178 ; 
Fry  v.  Bennett,  28  N.  Y.  325  ;  Bapalee  v.  Stewart,  27  N.  Y.  310 ; 
Allen  v.  Mercantile  Ins.  Co.,  46  Barb.  642  ;  Kelsey  v.  Western,  2 
N.  Y.  501 ;  N.  Y.  Central  Ins.  Co.  v.  National  Protect.  Ins.  Co.,  14 
N.  Y.  85 ;  Baker  v.  Bailey,  16  Barb.  54  ;  Dewey  v.  Hoag,  15  lb. 
365  ;  Walton  v.  Minturn,  1  Cal.  362 ;  Field  v.  Mayor,  etc.,  of  New 
York,  6  N.  Y.  179  ;  Bucknam  v.  Brett,  13  Abb.  119  ;  S.  C,  35  Barb. 
596 ;  Sandford  v.  Travers,  7  Bosw.  498 ;  S.  C,  40  N.  Y.  140 ;  But- 
ton v.  McCauley,  38  Barb.  413  ;  S.  C.  reversed,  5  Abb.  N.  S.  29 ; 
Wright  v.  Delafield,  25  N.  Y.  266.  Nor  will  the  fact  benefit  the 
defendant,  though  it  appears  in  plaintiff's  evidence.  Dengeldein 
v.  Third  Ave.  B.  B.  Co.,  9  Bosw.  91 ;  S.  C,  37  N.  Y.  575.  But 
where  the  plaintiff  voluntarily  shows  he  has  no  cause  of  action, 
the  rule  seems  otherwise.  Ely  v.  Cook,  2  Hilt.  406 ;  S.  C,  9  Abb. 
366;  28  N.  Y.  365.  Where  new  matter,  not  properly  pleaded,  is 
improperly  received  in  evidence  on  the  trial,  without  objection  on 
the  part  of  the  plaintiff,  the  court,  in  giving  judgment,  must  take 
it  into  consideration.  N.  Y.  Central  Ins.  Co.  v.  N.  Prot.  Ins.  Co., 
14  N.  Y.  85.  An  answer  is  frivolous,  which  merely  avers  that  the 
note  sought  to  be  recovered  on  was  obtained  by  fraud,  and  does 
not  aver  any  facts  showing  the  existence  of  the  fraud.  McMurray 
v.  Gifford,  5  How.  14 ;  Seeley  v.  Engell,  13  N.  Y.  542. 

Confessing  and  avoiding. — A  defendant,  in  his  answer  of  new 
matter,  in  order  to  avoid  a  cause  of  action,  need  not  confess  it.  He 
has  the  right  to  say :  "  I  deny  your  alleged  cause  of  action,  but  if 
you  shall  succeed  in  proving  it,  still  1  am  not  liable,  because,"  etc. 
Taylor  v.  Eichards,  9  Bosw.  679.  Contra:  Gregory  v.  Trainer,  4  E. 
B\  Smith,  58;  S.  C,  1  Abb.  209.  See  also  Anibal  v.  Hunter,  6 
How.  255  ;  Sayles  v.  Wooden,  6  How.  84 ;  Arthur  v.  Brooks,  14 
Barb.  533.  It  will  be  sufficient  in  the  answer  to  refer  to  the  cause 
of  action  as  the  supposed  cause  of  action,  Eavestaff  v.  Eussell,  10 
Mees  &  W.  365 ;  or  to  say  the  supposed  cause  of  action,  if  any 
there  be,  McCormick  v.  Pickering,  4  N.  Y.  280;  or  to  say  the 
sum  claimed.  Scodding  v.  Eyles,  9  Ad.  &  El.  489 ;  Margetts  v. 
Bays,  4  Ad.  &E1.  489.  But  the  true  rule  is  to  allow  the  defendant 
to  put  in  as  many  defenses  as  he  may  have,  whether  consistent  with 
each  other  or  not.     Stiles  v.  Comstock,  9  How.  48.    Thus,  in  an 


ANSWER.  197 

action  of  slander,  he  may  deny  the  charge  and  justify  at  the  same 
time.     Butler  v.  Wentworth,  9  How.  282 ;  S.  C,  17  Barb.  649. 

IE.  Counter-claim. 

This  is  a  new  term  translated  into  our  legal  vocabulary  by  the 
codifiers  ;  prior  to  their  existence  it  had  scarcely  any  existence  at 
all.  The  Ohio  code  is  not  quite  as  comprehensive  as  the  New  York 
code.  The  counter-claim  must  be  one  existing  in  favor  of  a  de- 
fendant and  against  a  plaintiff,  between  whom  a  several  judgment 
might  be  had  in  the  action,  and  arising  out  of  the  contract  or 
transaction  set  forth  in  the  petition  as  the  foundation  of  the  plaint- 
iff's claim,  or  connected  with  the  subject  of  the  action. 

This  term  counter-claim  is  defined,  or  an  effort  is  made  to  define 
it,  by  Crippen,  J.,  in  Silliman  v.  Eddy,  8  Pr.  122  :  "  It  may  be,  and 
no  doubt  is,  many  times  difficult  to  determine  whether  the  matter 
set  up  in  an  answer  is  a  counter-claim  or  not. 

"The  word  'counter'  is  defined  to  be  '  contrary  to,'  'contrary 
way,'  '  opposition  to,'  etc.  The  word  '  claim '  is  defined  to  mean 
'  the  demand  of  anything  that  is  in  the  possession  of  another,'  '  to 
demand,' '  to  require,'  etc. 

"  The  compound  '  counter-claim,'  as  used  in  the  code,  must  be 
regarded,  and  in  my  judgment  construed,  to  mean  an  opposition 
claim,  or  demand  of  something  due;  a  demand  of  something  which 
of  right  belongs  to  the  defendant  in  opposition  to  the  right  of  the 
plaintiff.  It  has  been  found  difficult  to  apply  the  term  '  counter- 
claim '  to  the  various  actions  which  are  daily  arising  in  our  courts ; 
and  I  very  much  doubt  whether  a  more  perplexing,  undefinable, 
impracticable  combination  of  words  could  have  been  joined  to- 
gether in  the  English  language,  than  those  selected  in  this  partic- 
ular by  the  modern  reformers,  who  claim  to  stand  as  sponsors  to 
the  present  code. 

"  It  will  be  seen  that  in  this  very  section  the  legislature  are  made 
to  require  of  the  lawyers,  by  a  positive  enactment,  as  a  matter  of  law, 
'that  ordinary  and  concise  language,  without  repetition,'  shall  be 
employed  in  a  reply  to  an  answer  containing  a  counter-claim,  when 
in  the  same  section  a  compound  is  used  so  extraordinary  and  un- 
common as  not  to  be  found  in  any  dictionary  extant.  It  has  been 
Bdid  that  •  consistency  is  a  jewel.'  It  is  not,  however,  to  be  found 
in  the  Code  of  Procedure." 

Barculo,  J.,  in  Roscoe,  Ex'r,  v.  Mason, 7  Pr.  121,  says  of  this  term  : 
"  It  is  unnecessary  to  attempt  to  define  the  precise  meaning  of  this 
unfortunate  compound,  which  has  been  pressed  by  our  modern 


19S  ANSWER. 


Solons  into  the  service  of  the  fourth,  and  it  is  to  be  hoped  the  last 
edition  of  the  code.  It  requires,  however,  hut  little  knowledge  of 
the  past  to  foresee  that  this  superfluous  interpolation,  which  is  not 
found  in  our  best  dictionaries,  and  has  been  hitherto  unknown  to 
our  statutes,  will  furnish  a  new  source  of  litigation,  and  contribute 
its  share  toward  unsettling  what  remains  of  good  pleading." 

Such  is  the  character  of  the  word  employed — a  word  undefined 
either  at  law  or  in  equity,  or  in  the  English  language — a  term 
coined  by  some  one,  for  some  purpose  not  yet  known,  and  employed 
in  a  sense  not  yet  ascertained.  There  are,  however,  two  conditions 
attached  to  the  introduction  of  this  counter-claim,  whatever  it  may 
mean — it  must  be  matter  in  favor  of  a  defendant  and  against  a 
plaintiff,  between  whom  a  several  judgment  might  be  had  in  the  action. 

1.  As  to  the  parties.  It  must  be  between  a  plaintiff  and  a  de- 
fendant. If  there  is  but  one  plaintiff  and  one  defendant  there  is 
no  difficulty  in  expounding  the  words.  But  it  is  a  plaintiff  and  a 
defendant,  seeming  to  single  out  one  plaintiff  or  one  defendant  from 
others  associated  with  him.  Where  the  claim  is  in  favor  of  all  the 
defendants  against  all  the  plaintiffs,  there  is  no  difficulty  in  apply- 
ing the  law  to  it,  and  affording  the  appropriate  remedy. 

But  suppose  one  of  several  defendants  has  a  claim  against  all  or 
a  part  of  the  plaintiffs,  can  he  set  it  up  ?  "We  are  inclined  to  think 
only  to  a  very  limited  extent.  The  case  on  the  part  of  the  plaintiff 
must,  however,  be  such  that  a  several  judgment  could  be  rendered 
between  the  parties  in  the  action.  A  defendant  can  not  set  up  a 
counter-claim  against  a  part  of  the  plaintiffs,  unless  the  claim  de- 
clared on  is  such  a  one  that  that  plaintiff  can  recover  in  his  favor 
a  separate  judgment  against  that  defendant;  then  that  defendant 
may  meet  that  several  claim  of  that  plaintiff  against  him  by  a  claim 
which  he  (the  defendant)  has  against  that  plaintiff.  So  where  all 
the  plaintiffs  are  entitled  to  a  several  judgment  against  any  single 
defendant,  that  defendant  may  meet  that  claim  by  any  counter- 
claim due  from  the  plaintiffs  to  him  alone.  So  if  all  the  defendants 
have  a  joint  claim  against  one  of  several  plaintiffs,  they  can  set  it 
up  only  in  case  the  action  is  such  that  a  single  plaintiff  would  be 
entitled  to  recover  a  judgment  in  his  favor  against  all  of  said  de- 
fendants. The  claims,  therefore,  to  be  the  subject  of  a  claim  and 
counter-claim,  must  be  mutual  claims  and  between  the  same  parties. 
The  claim  of  A  and  B  against  C  can  not  be  met  by  a  counter-claim 
of  C  against  B,  because  the  action  is  not  such  that  B  can  recover 
any  several  judgment  against  C.  So  where  several  sue  on  a  joint 
claim,  any  claim  which  can  be  the  subject  of  a  counter-claim  in 


ANSWER.  199 

behalf  of  a  defendant,  must  be  a  joint  claim  against  all  the  plaint- 
iffs. Unless  such  is  the  meaning  of  the  code,  then  you  must  ena- 
ble one  defendant  to  compel  all  the  plaintiffs  to  pay  a  debt  due  to 
him  from  one  of  them ;  or  you  must  go  further  and  adjust  the 
rights  between  the  plaintiffs,  and  ascertain  if  anything  is  due  to 
this  particular  plaintiff  out  of  this  money  when  recovered.  This, 
in  partnership  cases,  would  involve  the  settling  up  of  the  partner- 
ship accounts,  before  it  could  be  known  whether  the  partner  owing 
the  defendant  a  several  debt  had  any  several  property  wherewith 
to  pay  his  several  debt  to  the  defendant.  If  such  be  the  meaning 
of  the  code,  partners  had  best  consider  well  before  bringing  a  suit, 
lest  they  find  themselves  stopped  in  their  business,  and  broken  up 
by  some  petty  claim  set  up  by  a  creditor  of  the  firm  against  one  of 
its  members. 

Such,  of  course,  can  not  be  the  meaning  of  the  code.  The 
counter-claim  must,  in  nearly  all  cases,  therefore,  exist  mutually 
between  the  parties  to  the  suit,  unless  there  is  some  claim  in  the 
action  on  which  a  several  judgment  can  be  rendered  between  the 
parties  to  the  counter-claim.  This  provision  was  introduced  as  an 
uncertainty,  to  meet  the  uncertainty  of  who  may  be  parties,  and 
what  may  be  the  subject  matters  of  an  action.  There  may  be  such 
a  case,  but  we  very  much  doubt  it. 

2.  The  claim  set  up  must  have  arisen  out  of  the  contract  or 
transaction  set  forth  in  the  petition,  as  the  foundation  of  the 
plaintiff's  claim,  or  be  connected  with  the  subject  of  the  action. 
This  is  the  same  language  as  is  used  in  pointing  out  what  legal 
and  equitable  claims  may  be  joined  in  the  same  action,  and  we 
would  refer  the  reader  to  what  is  there  said.  It  is  clear  that  wher- 
ever, if  the  cause  of  action  had  existed  in  favor  of  the  plaintiff,  ho 
could  have  joined  it  in  his  complaint,  the  defendant  can  set  it  up  in 
his  answer,  if  the  right  of  action  is  in  his  favor.  "Without  undertak- 
ing to  define  this  language  with  more  care,  we  may  illustrate  its 
meaning  by  examples  coming  clearly  within  its  scope. 

And  first :  As  to  actions  founded  on  legal  rights.  Where  a  party 
sues  for  work  and  labor,  the  defendant  may  show  that  the  work  is 
of  an  inferior  quality,  when  it  was  to  have  been  of  the  best.  So 
where  a  suit  is  brought  to  recover  the  value  and  price  of  a  hois.', 
the  defendant  may  set  up  a  warranty  and  a  breach  of  it,  or  a  fraud- 
ulent sale,  and  claim  damages  for  that.  So  on  a  sale  of  a  steam- 
boat with  warranty,  there  arises  double  right  between  the  parties 
— to  the  vendor  a  righl  to  the  purchase  money,  and  to  the  vendee 
for  damages  on  a  breach  of  warranty;  and  if  either  party  sues,  the 


200  ANSWER. 


other  can  set  up  his  claim  by  way  of  counter-claim.  If  a  suit  is 
brought  on  the  warranty,  the  vendor  may  set  up,  by  way  of 
counter-claim,  that  the  plaintiff  is  indebted  to  him  for  the  purchase 
money  ;  and  in  this  way  no  judgment  will  be  rendered,  but  in  favor 
of  him  for  whom  a  final  balance  is  found  due.  So  also  to  an  ac- 
tion to  recover  the  price  and  value  of  real  estate  sold,  any  facts, 
showing  that  the  defendant  ought  not  to  be  required  to  pay  the 
full  price,  may  be  interposed  by  way  of  a  counter-claim  or  recoup- 
ment. 

There  is  another  class  of  cases  to  which  the  same  reasoning  will 
apply,  and  where  the  counter-claim  becomes  a  veritable  suit  of 
itself.  It  embraces  all  those  cases  where,  heretofore,  in  chancery, 
the  defendant,  wanting  some  affirmative  action  in  his  favor  was 
compelled  to  file  a  cross-bill.  Now,  he  probably  may  set  it  up  by 
way  of  counter-claim.  Thus  in  an  action  founded  on  a  legal  title 
to  recover  the  possession  of  land,  the  defendant  may  now  set  up  an 
equitable  right  to  a  conveyance  from  the  plaintiff;  and  if  he  prove 
himself  equitably  the  owner  with  right  of  possession,  and  entitled 
to  the  conveyance  from  the  plaintiff,  he  will  not  only  defeat  the 
action,  but  may  obtain  his  affirmative  relief.  Van  Santvoord's 
PL  307.  In  such  a  case  the  answer  is  a  veritable  cross-bill,  and 
must  state  all  that  would  have  been  necessary  to  be  stated  in  such 
a  bill,  and  must  ask  judgment  for  the  relief  the  defendant  insists 
he  is  entitled  to,  upon  all  the  facts  in  issue  between  the  parties. 
"Whatever  facts  which  would  have  entitled  a  defendant  to  have  re- 
sorted to  chancery,  to  enjoin  the  collection  of  the  whole  or  a  por- 
tion of  the  claim  at  law,  or  would  have  justified  a  defendant  in 
equity  in  filing  a  cross-bill,  will  probably  now  lay  the  ground  for 
a  counter-claim.  The  same  object  will  be  reached  by  a  legal  paper 
called  an  answer,  instead  of  by  another  heretofore  called  a  bill  in 
chancery.  Whatever,  however,  the  thing  may  be  called,  the  rem- 
edy and  the  relief  must  be  substantially  the  same.  The  answer 
will  become  the  bill,  and  the  reply  the  answer,  and  on  that  answer 
and  reply  will  just  the  same  relief  be  granted  as  formerly  would 
have  been  upon  the  bill  and  answer :  so  that  the  whole  change  re- 
sults in  little  more  than  a  change  of  names. 

These  illustrations  serve  to  show  what  is  probably  meant  by  the 
strange  word,  "  counter-claim"  and  what  sorts  of  defenses  may  be 
made  under  it.  The  New  York  code  gives  a  much  wider  latitude, 
where  the  counter-claim  originates  in  a  contract;  but  our  code  ad- 
mits set-off  by  name,  while  under  the  parent  code  it  comes  in  under 
this  word  "  counter-claim." 


ANSWER.  201 


Since  the  above  views  were  written,  we  have  obtained  the  tenth 
volume  of  the  Practice  Keports  of  New  York,  in  which  there  are 
cases  in  which  this  question  of  counter-claim  is  more  fully  dis- 
cussed than  in  any  previous  case  ;  and  as  these  views  are  somewhat 
different  from  those  expressed  above,  we  feel  bound  to  refer  to 
them. 

Before  doing  this,  however,  we  may  as  well  refer  to  one  other 
matter,  which  presents  a  veritable  difficulty  in  one  class  of  cases ; 
and  it  is  this :  What  is  to  be  done  with  a  case  where  the  action  is 
one  founded  on  legal  principles,  and  in  which  the  parties  are  enti- 
tled to  a  trial  by  jury,  when  the  counter-claim  set  up  is  in  equity, 
which,  admitting  the  plaintiff's  right  to  recover  at  law,  seeks  to 
prevent  him  from  enforcing  that  right  by  a  prayer  for  affirmative 
relief?  We  may  refer  to  what  we  have  already  said  on  this  sub- 
ject. There  is  here  such  a  difficulty  as  would  seem  to  preclude 
such  a  matter  from  being  set  up  as  a  counter-claim  in  an  answer,  un- 
less the  court  can  treat  this  answer  as  a  new  action,  to  be  tried  as 
though  presented  as  original  matter,  and  in  a  petition.  Under  the 
former  practice  in  chancery,  where  such  a  case  was  raised  by  bill 
in  that  forum,  the  complainant  was  compelled  to  consent  to  a  judg- 
ment in  the  action  at  law,  because  he  admitted  the  right;  and  then 
the  injunction  restrained  only  the  issue  of  the  writ  of  possession. 
Upon  the  principles,  then,  as  administered  in  a  court  of  equity,  a 
party  in  such  a  case  had  no  defense  to  such  an  action  ;  as  a  condition 
to  relief  he  had  to  consent  that  that  action  should  be  decided 
against  him.  Can  he  have  any  more  or  other  right  under  the  code? 
It  would  seem  not.  In  equity  and  by  the  law  of  equity  he  has  no 
right  to  stop  the  plaintiff  at  law ;  his  right  to  set  up  his  equity  de- 
pends upon  his  consenting  to  a  judgment  at  law  ;  if  he  refused  to 
do  this,  then  he  could  have  no  injunction  in  equity  against  the  suit 
at  law.  Ham  v.  Schuyler,  2  Johns.  Ch.  140.  If,  then,  the  law  of 
equitable  relief  is  to  be  administered,  this  defense  must  now  be 
sought  as  formerly,  by  an  original  petition  ;  that  petition  may  bo 
treated  as  a  cross-petition,  so  that  no  new  service  need  be  made — 
as  a  cross-bill  was  treated  in  equity ;  though  in  that  case  a  subpena 
and  service  was  required  in  the  cross-suit.  This  difficulty  may  be 
escaped  from  under  the  provisions  of  section  119.  That  section 
allows  a  counter-claim  to  be  turned  into  a  separate  action;  this, 
however,  depends  upon  the  volition  of  the  party  pleading  it.  How 
this  difficulty  is  to  be  avoided  we  know  not,  except  by  holding  that 
such  matter  can  not  be  set  up  as  a  counter-claim,  since  the  right 
to  interfere  with  tho  action  at  law  depends  upon  putting  an  end  to 


202  ANSWER. 


it.  The  right  is  not  a  right  to  stay  the  action,  but  to  prevent  its 
execution  by  a  writ  of  possession.  But  without  dwelling  longer  on 
this  matter,  we  will  proceed  to  the  cases  referred  to  above. 

The  first  is  the  case  of  Kneedler  u.  Sternbergh,  10  Pr.  67,  decided 
by  Hand,  J.,  in  June,  1854.  "  The  meaning  of  the  word  '  counter- 
claim,' "  says  the  judge,  "  has  already  been  a  subject  of  some  dis- 
cussion. Whittaker  Pr.  506,  507.  Not  being  a  technical  word,  nor 
found  in  our  dictionaries,  its  definition,  as  usual  in  the  code,  is  not 
perfectly  clear.  It  does  not,  however,  owe  its  paternity  to  the 
code.  Although  seldom  used,  it  has  been,  occasionally,  by  the 
profession.  Williams  and  Patterson,  JJ.,  in  Mee  v.  Tomlinson, 
4  Ad.  &  El.  262 ;  Wilde,  C.  J.,  in  Collander  v.  Howard,  10  Com.  B. 
262 ;  Sedg.  on  Dam.  Ch.  17.  Like  some  other  rather  inelegant 
compounds — as,  'counter-demand'  (6  Ves.  141),  'counter-letter' 
(11  Peters,  351),  'counter-paper,'  and  'counter-security'  (Chitty 
on  Bills,  711),  '  counter-action  '  (5  Exch.  356), — it  may  sometimes 
be  met  with  in  our  law  books ;  but  most  generally,  before  the  code, 
I  believe  it  had  reference  to  a  set-off.  The  word  'claim'  has  been 
considered  '  a  word  of  art,'  and  long  since  was  defined  by  C.  J. 
Dyer  to  be  '  a  challenge  by  a  man  of  the  property  or  ownership  of 
a  thing  which  he  has  not  in  possession,  but  is  wrongfully  detained 
from  him.'  Plowden,  359.  And  its  popular  signification  and  use 
would  hardly  include  recoupment  in  every  case.  Kecoupment  is  not 
always  a  subsisting  claim.  Suppose  a  disseizor  erects  permanent 
improvements ;  when  called  upon  to  respond  in  damages  he  may 
recoupe  what  he  has  so  expended.  Coulter's  case,  5  Coke,  131 ;  8 
Vin.  556 ;  Sedg.  on  Dam.  Ch.  17.  And  yet  he  has  no  cause  of 
action  therefor.  Its  early  use  was  in  this  sense ;  but  I  do  not  un- 
derstand this  would  be  a  counter-claim  within  the  code.  Indeed, 
the  examples  of  recoupment  given  in  Viner  are  under  the  head  of 
discount.  A  counter-claim  must  be  a  cause  of  action,  a  cross- 
demand.  Sec.  94  Ohio,  and  sec.  150  New  York  code.  The  defend- 
ant can  have  no  clai?n,  properly  speaking,  arising  solely  out  of  the 
plaintiff's  cause  of  action.  Where  the  defense  rests  in  the  mere 
right  of  deduction,  or  diminution  of  the  plaintiff's  damages,  the 
law,  before  the  code,  gave  and  enforced  that  right.  The  claim  of 
the  plaintiff  may  now  be  met  by  independent  causes  of  action 
arising  upon  the  same  or  other  contract ;  but  this  is  quite  another 
thing.  In  this  case,  if  the  original  contract  of  purchase  had  been 
between  these  parties,  and  the  defendant  had  set  up  a  warranty  by 
the  plaintiff,  and  damages  claimed  by  breach  thereof  should  be  al- 
lowed, that  would  have  been  a  counter-claim.     But  when  a  vendee, 


ANSWER.  203 

who  has  paid  nothing  in  an  action  for  the  purchase  money,  seeks 
merely  to  reduce  the  amount  of  the  recovery  by  showing  a  partial 
failure  of  consideration,  or  even  defeat  a  recovery  by  showing  a 
total  failure,  it  is  not  easy  to  see  how  such  a  defense  can  be  deemed 
to  be  a  cause  of  action  on  his  part.  Besides,  as  to  a  partial  failure, 
with  all  respect  for  those  who  may  think  differently,  I  find  no  rule 
in  the  code,  by  which  either  a  partial  defense  or  matter  in  mitiga- 
tion can  be  pleaded  alone  any  more  than  formerly,  especially  where 
the  action  or  defense  does  not  belong  to  equitable  jurisdiction. 

"  But  the  same  reason  for  requiring  the  defendant  in  his  plea  to 
meet  the  whole  of  the  declaration  or  count,  by  a  denial  or  other 
matter  in  avoidance,  or  by  opposing  claims,  or  by  confession,  or  by 
some  or  all  of  these  defenses  combined,  still  exists.  The  code  only 
abolishes  the  forms  of  pleading,  not  principles.  It  seems  to  me  that 
the  rule,  that  such  matters  may  be  given  in  evidence,  still  pre- 
vails." 

This  is  all  very  well  where  the  defendant  is  not  bound  to  make 
oath  to  his  answer ;  but  where  he  must  swear  to  it,  he  must  state 
the  truth,  and  that  truth  must  admit  a  part  to  be  due,  and  a  failure 
as  to  the  balance.  He  can  not  deny  under  oath  the  whole  debt ; 
and  hence,  unless  he  can  admit  a  part  and  set  up  the  failure  or 
want  of  consideration  to  the  residue,  he  must  pay  the  whole  claim. 
What  Judge  Hand  here  says  is  probably  true  ;  but  are  men  to  be 
swindled  by  the  absurdities  of  the  code  ?  It  is  better  to  enlarge  or 
restrain  its  language  as  justice  may  require.  Indeed,  unless  that 
is  done,  the  sooner  it  is  repealed  the  better.  The  code  itself  re- 
quires courts  thus  to  deal  with  it,  as  may  be  seen  by  looking  at 
section  2.  It  is  to  be  liberally  construed  to  assist  parties  in  obtain- 
ing justice. 

The  other  case  referred  to  is  that  of  Drake  v.  Cockroft,  10  Pr. 
377.  The  action  was  brought  to  recover  rent  due  upon  a  lease. 
The  defendant  set  up  by  way  of  counterclaim  that  the  landlord,  or 
plaintiff,  in  the  absence  of  the  defendant,  broke  open  the  stable  and 
willfully  took  and  removed  the  personal  property  of  the  defendant 
therefrom,  and  that  the  same  was  injured,  destroyed,  or  lost  to  the 
plaintiff. 

It  is  not  claimed,  says  Woodruff,  J.,  in  delivering  the  opinion  of 
the  court,  that  such  a  trespass  could  be  set  up,  before  the  adoption 
of  our  code,  as  a  defense  to  an  action  by  the  landlord  for  the  rent. 
After  reciting  the  provisions  of  the  code,  he  proceeds  :  "A  trespass 
upon  real  or  persona]  property  is  not  a  cause  of  action  arising  on  a 
contract.     The  second  clause,  then  (providing  for  cases  arising  on 


204  ANSWER. 

contract),  clearly  docs  not  authorize  such  a  defense  in  an  action 
upon  a  contract,  and  the  present  is  an  action  upon  the  contract  of 
hiring. 

"  Does  the  first  definition  or  explanation  of  the  term  counter-claim 
embrace  the  matter  set  up  in  this  answer  ? 

"  Obviously  it  does  not,  unless  the  cause  of  action  set  up  in  the 
answer  arises  out  of  the  contract  set  forth  in  the  plaintiff's  com- 
plaint, or  is  connected  with  the  subject  of  the  plaintiff's  action. 

"  The  answer  sets  up  a  trespass  by  the  landlord  upon  the  de- 
mised premises,  and  the  destruction  of  the  defendant's  goods.  It 
does  not  even  claim  damages  for  the  entry,  or  for  any  injury  to  the 
possession,  but  only  to  the  personal  property  destroyed.  The  con- 
tract set  forth  by  the  plaintiff  is  a  letting  and  hiring,  and  an  agree- 
ment by  the  defendant  to  pay  rent. 

"  The  trespass  averred  does  not  arise  out  of  any  contract.  The 
liability  of  the  plaintiff  for  the  trespass  does  not  result  from  that 
contract,  nor  is  it  affected  by  it. 

"As  a  cause  of  action  it  is  wholly  independent  of  that  contract ; 
and  the  liability  therefore  exists  to  the  same  extent,  and  is  neither 
less  nor  greater  than  if  the  trespass  had  been  committed  upon  any 
other  premises  in  the  occupation  of  the  defendant.  The  landlord 
is  no  more  liable  for  the  trespass  than  for  the  like  trespass  com- 
mitted elsewhere. 

"  Nor  is  the  trespass  connected  with  the  subject  of  the  action.  The 
subj  ect  of  the  action  is  rent,  or  money  due  upon  the  contract  of 
hiring — the  compensation  for  the  use  and  occupation  of  the  land. 
The  use  and  occupation  have  not  been  interfered  with.  They  have 
continued  without  interruption.  An  interference  with  the  posses- 
sion, an  eviction,  total  or  partial,  an  unlawful  injury  to  the  prem- 
ises, in  violation  of  the  agreement  of  letting,  would  have  given  the 
defendant  a  claim  for  damages  which,  upon  a  liberal  construction 
of  the  language  of  the  code,  might  have  been  connected  with  the 
subject  of  the  action  so  as  to  constitute  a  counterclaim.  But  a  mere 
trespass  is  no  more  connected  with  the  subject  of  an  action  brought 
for  the  rent,  than  an  assault  and  battery  of  the  tenant  by  the  land- 
lord would  be. 

"  I  can  find  no  more  ground  for  saying  that  such  a  trespass  can 
be  set  up  as  a  defense  to  an  action  for  rent  now,  than  before  the 
code  was  enacted.  The  provisions  of  the  code  above  referred  to 
were  designed  to  affirm  the  right  of  a  defendant  to  recover  dam- 
ages in  those  cases  in  which  a  recoupment  was  proper  before  the 
code  was  enacted.    See  Eeab  v.  McAllister,  8  Wend.  109  ;  Batter- 


ANSWER. 


205 


man  v.  Pierce,  3  Hill,  191.  If  the  code  extends  the  right  to  any 
other  cases  not  within  the  law  of  set-off  (which  I  doubt),  they  are 
not  such  as  are  exhibited  by  the  answer  now  in  question." 

Here  are  two  judges  widely  disagreeing  as  to  the  effect  of  this  pro- 
vision of  the  code — Judge  Hand  thinking  that  certain  cases  of  re- 
coupment, as  that  word  is  rightly  denned,  do  not  come  within  this 
counter-claim  ;  while  Judge  Woodruff  thinks  it  meets  cases  of  re- 
coupment and  no  other.  So  much  for  the  perspicuity  of  the  learned 
codifiers,  who  require  everybody  else  to  use  ordinary  and  concise 
language,  without  repetition!  They  have  manifestly  failed  in  the 
end  of  all  language — that  of  making  themselves  understood. 

Mr.  Justice  Woodruff  seems  to  imply  that  if  the  landlord  had  dis- 
turbed the  tenant'spossession,  then  he  might  have  set  it  up  as  a  coun- 
ter claim.  This  can  not  be  correct.  It  could  be  done  only  on  the 
ground  of  its  being  connected  with  the  subject  of  the  action.  The 
subject  of  the  action  is  the  rent ;  and  on  that  two  questions  arise — 
First.  Is  any  rent  due  ?  Secondly.  How  much  ?  Now  no  act  of 
the  landlord  on  the  premises  can  be  connected  with  the  subject  of 
this  action — the  rent — unless  it  is  such  as  to  defeat  the  right  to  re- 
cover the  rent,  in  part  or  whole.  But  a  trespass  does  not  do  that, 
nor  is  a  trespass  connected  with  the  subject  of  rent.  It  is  a  wholly 
independent  matter.  They  are  no  more  connected  than  two  sepa- 
rate assaults  would  be,  simply  because  they  happened  on  the  same 
inclosure.  The  rent  is  due  for  the  use  of  the  land  ;  the  trespass  is 
an  injury  to  the  right  of  the  tenant  in  the  land  ;  but  how  the  one 
can  be  said  to  be  connected  with  the  subject  of  the  other,  is  more 
than  we  can  understand.  Blair  v.  Claxton,  18  N.  Y.  529 ;  Edger- 
ton  v.  Page,  20  N.  Y.  281 ;  12  Ohio  St.  344,  622  ;  3  lb.  333 ;  4  lb. 
680 ;  5  lb.  520  ;  6  lb.  207  ;  7  lb.  85 ;  10  lb.  327. 

Since  the  first  publication  of  this  work,  numerous  decisions  have 
been  made  in  regard  to  the  subject  of  counter-claim,  which  deserve 
citation  and  consideration.  This  provision  as  to  counter-claims 
has  sometimes  been  referred  to  the  prior  practice  of  recoupment,  a 
word  coming  from  a  French  verb,  which  signifies  to  chip  off,  to  cut 
off,  and  also  a  set-off.  It  is  the  right  which  a  party  has  to  cut 
down  a  claim  sued  for,  by  showing  that  the  goods  which  were  the 
basis  of  it,  were  defective  and  not  what  they  were  warranted  or 
repr<  Beat  'I  to  be  in  quality  or  value.  "When  a  party,"  say  tli*1 
court  in  [Jpton  0.  Julian,  7  Ohio  St.  95,  97,  "  sues  to  recover  for 
good.s  sold  and  delivered,  or  work  and  labor  performed  under  a 
contract,  it  would  sc-em  reasonable  that  he  may  be  required,  upon 
proper  notice,  to  account  in  the  same  action  for  his  own  disregard 


206  ANSWER. 

of  the  obligation  of  the  same  contract.  Why  should  ho  be  allowed 
to  recover,  as  upon  a  full  performance  on  his  part,  and  the  defend- 
ant be  driven  to  a  cross-action,  the  result  of  which  would  leave 
the  parties  just  where  the  principle  of  recoupment  would  have 
placed  them  at  the  close  of  the  former  suit? 

"  And  the  principle  is  the  same,  whether  the  suit  be  brought  upon 
the  original  contract,  or,  as  in  this  case,  upon  a  promissory  note 
founded  thereon. 

"  Our  present  code  fully  sanctions  this  right  and  provides  for  its 
exercise  by  way  of  counter-claim."  Vide  also  Steamboat  Wellsville 
v.  Geisse,  3  Ohio  St.  333.  Such  a  proceeding  is  in  the  nature  of  a 
cross-action,  and  is  governed  by  the  same  principles.  Timmons  y. 
Dunn,  4  Ohio  St.  680;  Nichols  v.  Dusenbury,  2  Comstock,  286. 

In  Hill  v.  Butler,  6  Ohio  St.  207,  216,  Swan,  J.,  says  :  "  The  code 
allows  any  ground  of  defense  existing  in  favor  of  a  defendant  and 
against  a  plaintiff,  between  whom  a  several  judgment  might  be  had 
in  the  action,  and  arising  out  of  the  contract  or  transaction  set 
forth  in  the  petition  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action,  to  be  set  up  as  a  counter- 
claim. Code,  sec.  94.  This  provision  allows  the  defendant  to 
plead  various  matters  of  defense,  which  could  not  be  entertained 
before  the  adoption  of  the  code,  either  on  account  of  the  separation 
of  the  law  and  equity  jurisdictions  of  courts,  or  the  forms  of  ac- 
tions and  pleadings. 

"  But  it  neither  changes  contracts,  nor  alters  the  rights  of  the 
parties  ;  it  only  changes  and  enlarges  the  mode  by  which  contracts 
shall  be  enforced  and  existing  rights  vindicated.  Hence,  in  the 
case  before  us,  the  rights  of  Hill  under  the  covenants  in  the  deed 
of  Butler,  and  under  the  alleged  agreement  as  to  a  defect  in  the 
title,  must  be  determined  upon  the  recognized  pi-inciples  of  courts 
of  law  and  equity,  and  can  obtain  no  support  by  means  of  this 
provision  of  the  code.  In  other  words,  the  couuter-claim  must 
contain  facts  recognized  by  courts  of  law  or  equity  as  constituting 
an  existing  cause  of  action."  So  in  that  case,  it  was  decided  that 
where  land  had  been  sold  and  conveyed  with  warranty,  and  vendee 
was  in  possession,  no  right  of  counter-claim  existed  as  against  an 
action  to  recover  the  purchase  money,  because  the  warranty  was 
not  broken  till  an  eviction  of  the  vendee  under  a  superior  title. 
The  counter-claim  must  set  up  facts,  which  would  sustain  an  action 
in  his  favor  against  the  plaintiff.  The  code  does  not  change  the 
liabilities  of  parties  ;  it  only  provides  a  remedy  in  a  single  action 
for  the  adjudication  of  both  actions,  since  they  grow  out  of  the 


ANSWER.  207 

same  transaction.  The  claim  must  also  exist  between  a  defendant 
and  a  plaintiff  in  the  action ;  hence  that  a  counter-claim  can  not 
be  allowed  to  one  of  several  defendants  against  the  plaintiff,  when 
it  appears  that  another  defendant  is  primarily  liable  for  the  claim 
demanded.  Ernst  v.  Eunkle  et  al.,  5  Ohio  St.  520.  It  was  also  held 
in  this  case,  which  was  to  recover  an  assessment  to  improve  a 
street,  that  a  claim  for  damages  sustained  in  making  the  improve- 
ment, could  not  be  set  up  as  a  counter-claim,  unless  the  claim  had 
been  presented  to  the  clerk  of  the  city  and  sixty  days  thereafter 
had  elapsed,  because  until  that  had  been  done  and  the  sixty  days 
had  passed,  there  was  no  right  of  action  against  the  city,  and  a 
counter-claim  must  be  an  existing  right  of  action. 

So  in  the  case  of  Gillespie  v.  Torrance,  25  N.  Y.  306,  it  was  held 
that  the  accommodation  indorser  of  a  note  given  for  chattels  sold 
in  an  action  against  him  alone,  could  not,  at  law,  avail  himself  of  a 
breach  of  warranty  as  to  the  quality  of  such  chattels  by  way  of 
defense,  recoupment,  or  counter-claim.  Selden,  J.,  says:  "Under 
the  code  of  procedure,  doubtless  a  balance  might  be  recovered 
(Code,  sees.  150-274;  Ogden  v.  Coddington,  2  E.  D.  Smith,  317); 
but  the  right  of  election  to  set  up  a  counter-claim  in  defense,  or  to 
bring  a  cross-action  for  it  still  exists.  Halsey  v.  Carter,  6  Duer,  667 ; 
Welch  v.  Hazleton,  14  How.  Pr.  97.  Now,  it  is  not  easy  to  recon- 
cile with  these  established  principles  the  right  of  the  defendant  in 
this  suit  to  avail  himself  of  the  claim  which  Van  Pelt  may  have 
against  the  plaintiff,  on  a  breach  of  warranty:  1.  Such  damages 
constitute  a  counter-claim,  and  not  a  mere  failure  of  consideration, 
and  not  being  due  to  the  defendant,  can  not  be  claimed  by  him. 
Code,  sec.  150;  Lemon  v.  Trull,  13  Pr.  248;  16  lb.  576,  note. 
2  Van  Pelt  has  a  right  of  election  whether  the  damages  shall  bo 
claimed  by  way  of  recoupment,  in  the  suit  on  the  note,  or  reserved 
or  a  cross-action.  The  defendant  can  not  make  this  election  for 
him.  3.  If  the  defendant  has  a  right  to  set  up  the  counter-claim, 
and  have  it  allowed  in  this  action,  it  must  bar  any  future  action  by 
Van  Pelt  for  the  breach  of  the  warranty ;  and  as  no  balance  could 
be  found  in  defendant's  favor,  he  might  thus  bar  a  large  claim  in 
canceling  a  small  one.  If  the  right  exists  in  this  case,  it  would 
equally  exist  if  the  note  was  but  $100,  instead  of  $1,800.  4.  Sup- 
posing the  other  given  for  the  timber  to  have  been  indorsed  by 
different  persons,  for  the  accommodation  of  Van  Pelt,  and  all  to 
remain  unpaid,  each  of  the  indorsers  would  have  the  same  rights  as 
the  defendant.  If  they  were  to  set  up  the  same  defense,  how 
would  the  conflicting  claims  be  reconciled? 


208  ANSWER. 


"In  the  case,  which  was  shown  on  the  trial,  there  would  seem  to 
be  a  strong  equity  in  favor  of  the  defendant  to  have  the  note  can- 
celed or  reduced,  by  applying  toward  its  satisfaction  the  damages 
which  appear  to  be  due  Van  Pelt  for  the  breach  of  warranty.  It 
is,  however,  an  equity,  in  which  Van  Pelt  is  interested  to  as  great, 
and  possibly  to  a  greater  extent  than  the  defendant,  and  can  not 
be  disposed  of  without  having  him  before  the  court,  so  that  his 
rights  as  well  as  those  of  the  defendant,  may  be  protected.  That 
remedy  may  be  open  to  the  defendant  still,  notwithstanding  the 
judgment,  especially  if  the  insolvency  of  the  parties  renders  that 
course  necessary  for  his  protection.  14  Johns.  63 ;  17  lb.  389 ; 
2  Cowen,  261;  2  Paige,  581  ;  6  Dana,  32;  8  lb.  164;  2  Story's 
Eq.,  sees.  1446a,  1437.  My  conclusion  is  that  the  court  below  was 
right  in  holding  that  the  defendant  could  not  set  up  the  breach  of 
warranty  in  defense,  partial  or  total,  to  the  suit  on  the  note." 

In  the  case  of  Walker,  Adm'r,  v.  John  A.  Millard,  29  N.  Y.  375, 
the  question  came  up  in  another  form.  The  testator  made  an 
agreement  with  the  defendant,  by  which  the  plaintiff  was  to  fur- 
nish materials  and  do  certain  work  for  defendant,  for  which  he 
agreed  to  pay  $600.  The  intestate  proceeded  in  the  work,  was 
paid  $100,  and  when  the  work  was  nearly  done,  the  defendant 
gave  a  note  for  $400,  still  leaving  $100  due.  The  action  was  on 
the  note  and  for  the  $100.  The  intestate  did  not  complete  the 
work  ;  the  defendant  set  up  a  counter-claim  for  not  completing  the 
work.  The  court  held  that  the  paying  $100,  and  giving  note  for 
$400,  was  a  change  of  the  terms  of  payment,  and  that  a  failure  to 
complete  the  work  was  no  defense  to,  nor  could  it  be  set  up  as,  a 
counter-claim  against  the  amount  due  on  the  note,  but  only  against 
the  $100  still  due  on  the  original  agreement.  Johnson,  J.,  de- 
livered the  opinion  of  the  court.  "  There  being  no  fraud,"  he  says, 
"  or  mistake  of  facts,  the  party  giving  the  note  is  precluded  from 
setting  up  the  contract  to  defeat  a  recovery  upon  it.  This  was 
held  in  Thorp  v.  White,  13  Johns.  53,  a  case  quite  analogous  to 
this.  See  also  1  Parsons  on  Notes  and  Bills,  197,  200.  This 
must  be  so  on  principle.  The  note  certainly  was  founded  upon  a 
good  consideration.  It  was  not  given  in  pursuance  of  the  contract, 
but  upon  a  new  agreement,  which  was  a  waiver  of  the  terms  of 
payment  prescribed  in  the  contract.  A  subsequent  breach  of  the 
contract  by  the  pa}Tee  could  not  affect  the  note,  which  was  given 
for  work  already  performed.  Such  a  breach  could,  by  no  possi- 
bility, be  construed  into  a  failure  of  the  consideration  of  the  note. 
.     .     .     .     It  was,  however,  a  good  defense  to  the  action  upon  the 


ANSWER.  209 

contract,  to  recover  the  balance  remaining  unpaid,  and  so  the 
referee  held."  This  was  an  effort  to  avoid  pay  for  what  work  was 
done,  on  the  ground  that  by  the  contract  the  completion  of  the 
work  was  a  condition  precedent  to  recover  at  all.  The  plaintiff 
failed  to  recover  the  $100  on  the  contract,  and  then  the  defendant 
claimed  to  set  up  his  damages  on  the  contract  against  the  note  as 
a  counter-claim,  though  his  damages  were  less  than  the  $100  due 
on  a  completion  of  the  agreement.  This  the  court  held  he  could 
not  do.  So  also  in  the  case  of  Loomis  et  al.  v.  Eagle  Bank,  10  Ohio  St. 
327.  In  this  case,  E.  Gilbert  &  Co.  had  agreed,  on  May  1,  1855,  to 
deliver  one  thousand  kegs  of  powder,  one-half  to  be  delivered  at 
once,  the  other  half  in  June  following.  The  one-half  was  delivered 
as  agreed,  and  the  note  given  therefor ;  the  other  half  never  was 
delivered.  It  was  averred  the  bank  had  knowledge  of  this  failure 
to  deliver  the  balance ;  to  damage  of  defendants,  $850.  The 
court  held  that  there  were  two  contracts,  and  that  a  failure  to  de- 
liver the  last  lot  could  not  be  set  up  as  a  counter-claim  against  the 
amount  due  on  the  note  given  for  the  non-delivery  of  the  second 
lot.  This  was  on  the  ground  that  the  damages  sustained  by  a  fail- 
ure to  deliver  the  second  lot  did  not  grow  out  of  the  same  trans- 
action as  the  first  note  did.  On  the  delivery  of  the  first  lot  of 
powder,  the  note  was  given  for  the  value  of  that  lot,  and  that 
closed  up  the  first  agreement ;  a  failure  to  deliver  the  second  lot 
in  June  was  a  liability  resting  on  Gilbert  &  Co.  personally,  as  in 
law  a  separate  transaction.  The  parties  so  understood  it,  or  the 
first  note  would  not  have  been  given  in  completion  of  that  part  of 
the  agreement.  This  case,  then,  decides  that  where  an  agreement 
is  made  for  the  delivery  of  certain  merchandise  in  several  lots,  at 
different  times,  and  as  each  lot  is  delivered,  that  part  is  closed  by  a 
bill  or  note,  any  damages  sustained  by  a  failure  to  deliver  any  sub- 
sequent lots  or  parcels  can  not  be  set  up  as  a  counter-claim  against 
the  notes  already  given  :  and  this  is  a  proper  construction  on  the 
agreement  and  the  application  of  the  law.  Each  lot  or  parcel  is  a 
transaction  completed  by  the  giving  of  the  note.  So  expenses  in- 
curred by  an  assignee  of  an  insolvent  are  not  matters  of  counter- 
claim, to  be  set  up  in  an  action  by  a  creditor  calling  him  to  account ; 
it  is  matter  to  be  allowed  or  not  in  settling  his  account  of  assignee. 
If  such  a  matter  is  pet  up  in  an  answer,  it  is  not  new  matter  re- 
quiring a  reply.  Duffy  v.  Duncan,  35  N.  Y.  187.  In  the  case  of 
Lawrence  v.  Dank  of*  Republic,  35  N.  Y.  320,  the  defendants  set 
up  as  a  counter-claim  to  an  action  by  assignees  of  Lane,  Boico  & 
vol.  i — 14 


210  ANSWER. 


Co.,  to  recover  money  deposited  by  them  with  defendants,  and  be- 
longing to  them  as  such  assignees,  a  claim  which  it  had  against  the 
assignor,  Lane,  Boice  &  Co.  But  the  court  held  that  it  could  not 
be  done  They  received  the  money  from  plaintiff  as  trustees  for 
the  benefit  of  all  the  creditors,  and  the  bank  could  not  obtain  a  prior- 
ity over  other  creditors  by  setting  up  what  was  called  a  counter- 
claim ;  they  had  no  other  remedy  than  other  creditors — a  creditor's 
bill  for  the  distribution  of  the  fund.  This  counter-claim  did  not 
grow  out  of  the  same  transaction  as  the  plaintiffs'  cause  of  action. 
That  was  a  deposit  of  money  by  plaintiffs  with  the  defendant ;  the 
counter-claim  grew  out  of  dealings  between  defendant  and  Lane, 
Boice  &  Co.  "  It  is  said,"  say  the  court, "  that  such  a  defense  is  author- 
ized by  the  code  to  prevent  circuity  of  action.  However  desirable 
it  may  be  to  settle  in  one  suit  all  the  controversies  between  the 
parties,  which  relate  to  the  same  subject  matter,  it  is  not  proper  to 
disregard  the  well-settled  forms  of  action  to  accomplish  such  result, 
except  where  the  statute  plainly  furnishes  a  new  form  of  remedy. 
It  is  safer  to  abide  by  the  old  landmarks  of  the  law  than  to  try 
exjjeriments  in  the  expectation  of  finding  a  shorter  road  to  the 
temple  of  justice."  This  answer  was  an  effort  to  avoid  paying  this 
money,  as  they  had  agreed,  by  starting  a  creditor's  bill  against  the 
plaintiffs  (the  assignees)  by  way  of  an  answer.  The  court  held 
rightly,  that  they  must  pay  the  money  to  the  assignees  from  whom 
they  received,  and,  if  they  saw  fit,  proceed  by  a  new  action,  in 
form  of  a  creditor's  bill,  for  the  distribution  of  these  funds.  The 
assignees  were  responsible  for  the  safe-keeping  of  the  money,  and 
not  the  bank.  They  were  also  trustees  of  an  express  trust,  and, 
as  such,  had  a  right  to  sue  for  its  funds.  There  may  be  cases 
when  the  facts  stated  may  constitute  a  defense  to  the  action,  or  a 
counter-claim,  which  may  be  set  up  to  recover  damages  to  meet 
plaintiffs'  claim,  and  the  court  will  give  such  an  effect  to  the  answer 
as  will  best  promote  the  ends  of  justice.  Lancaster  (0.)  Man.  Co.  v. 
Colegate,  12  Ohio  St.  344.  A  counter-claim  exceeding  in  amount  a 
justice's  jurisdiction,  can  not  be  set  up  in  an  action  before  a  justice.  lb. 
In  an  action  for  rent,  the  defendant  may,  under  a  covenant  of 
the  landlord  to  keep  the  premises  in  repair,  set  up,  as  a  counter- 
claim, an  amount  expended  by  him  in  the  necessary  repair  of  the 
premises,  and  also  damages  sustained  by  the  loss  of  the  use  of  cer- 
tain parts  of  the  premises,  rendered  untenable  for  the  want  of 
repair.  Myers  v.  Burns,  35  N.  Y.  269.  So  where  a  real  action  is 
brought  to  turn  the  tenant  out  for  non-payment  of  rent,  the  tenant 
may  show,  by  way  of  counter-claim,  and  to  reduce  the  amount  of 


ANSWER.  211 

the  rent  due,  that  he  has  been  evicted  from  a  portion  of  the  leased 
premises.  Blair  v.  Claxton,  18  K  Y.  529.  The  court  say :  "  It 
was  mainly  for  the  purpose  of  avoiding  the  necessity  of  resorting 
to  several  actions  in  cases  of  this  kind,  that  the  distinction  between 
legal  and  equitable  remedies  was  abolished ;  and  it  was  in  further- 
ance of  that  policy  that  a  counter-claim  was  allowed  to  be  inter- 
posed where  the  defendant  had  '  cause  of  action,  arising  out  of  the 
contract  or  transaction,  set  forth  in  the  complaint  as  the  founda- 
tion of  the  plaintiff's  claim,  or  connected  with  the  subject  of  the 
action.'  Code,  sec.  150.  In  ejectment  for  non-payment  of  rent,  it 
is  essential  to  ascertain  whether  any  and  how  much  rent  is  duo  ; 
and,  in  coming  at  this,  the  defendant  ought  to  have  the  advantage 
of  any  equitable  answer  he  may  have  to  the  claim  for  rent :  and 
the  present  forms  of  procedure  are  adapted  for  the  adjustment  of 
such  a  claim,  upon  equitable  as  well  as  legal  principles."  This 
case  can  hardly  arise  in  Ohio,  as  we  have  no  such  statutory  remedy 
for  rent  unpaid.  If  a  lease  were  drawn  that  a  failure  to  pay  rent 
should  forfeit  the  lease,  the  lessor  might  bring  a  real  action,  and, 
under  the  issue  that  he  does  not  unlawfully  detain,  the  defendant 
might  show  that  there  was  no  rent  due,  and  hence  that  plaintiff 
was  not  entitled  to  recover.  The  issue  of  "  do  not  unlawfully  detain'' 
is  as  broad  in  one  respect  as  the  old  plea  of  not  guilty  in  eject- 
ment. It  raises  the  issue  whether  defendant  unlawfully  keeps  the 
plaintiff  out  of  the  possession  of  land  to  which  he  has  the  title. 

These  questions  came  up  also  in  the  case  of  Edgerton  v.  Page,  20 
!N\  Y.  281.  It  was  there  held  that,  when  the  amount  of  the  rent  is 
fixed  by  the  lease,  and  the  lessor  is  guilty  of  wrongful  acts,  which 
are  not  done  under  a  claim  of  right,  but  are  acts  of  mere  trespass 
or  negligence,  the  injury  could  not  form  the  subject  of  a  counter- 
claim in  an  action  for  the  rent.  Grover,  J.,  delivered  the  opinion 
of  the  court.  "  The  demurrer,"  he  says,  "  presents  two  questions : 
First,  whether  the  facts  alleged  in  the  answer  constitute  a  defense; 
second,  whether  they  constitute  a  counter-claim,  available  to  the 
defendant  by  way  of  a  recoupment  or  otherwise  in  this  action. 
The  rule  has  long  been  settled  that  a  wrongful  eviction  of  the 
tenant  by  the  Landlord,  from  the  whole  or  any  part  of  the  demised 
premises,  before  tho  rent  becomes  due,  precludes  a  recovery 
thereof  until  the  possession  is  restored.  Christopher  v.  Austin,  1 
Kern.  217.  Whether  this  eviction  must  bo  actual  by  the  forcible 
removal  of  the  tenant  by  the  landlord  from  the  demised  premises, 
or  a  portion  thereof,  was  not  settled  in  this  State  until  tho  case  of 
Uyett  v.  Pendleton,  8  Cowen,  728.     In  that  caso  tho  principlo  was 


212  ANSWER. 

established  by  the  court  for  the  correction  of  errors,  that  when 
the  lessor  created  a  nuisance  in  the  vicinity  of  the  demised  prem- 
ises, or  was  guilty  of  acts  that  precluded  the  tenant  from  a  bene- 
ficial enjoyment  of  the  premises,  in  consequence  of  which  the  tenant 
abandoned  the  possession  before  the  rent  became  due,  the  lessor's 
action  for  the  recovery  of  the  rent  was  barred,  although  the  lessor 
had  not  forcibly  turned  the  tenant  out  of  possession. 
Such  act  of  the  lessor,  accompanied  by  an  abandonment  of  posses- 
sion by  the  lessee,  is  deemed  a  virtual  expulsion  of  the  tenant,  and, 
equally  with  an  actual  expulsion,  bars  the  recovery  of  rent.  The 
reason  of  the  rule  is,  that  the  tenant  has  been  deprived  of  the  en- 
joyment of  the  demised  premises  by  the  wrongful  act  of  the  land- 
lord ;  and  thus  the  consideration  of  his  agreement  to  pay  rent  has 
failed.  In  case  of  eviction  from  a  portion  of  the  premises,  the  law 
will  not  apportion  the  rent  in  favor  of  the  wrong-doer. 

"The  remaining  question  is,  whether  a  counter-claim,  arising 
from  facts  contained  in  the  answer,  is  available  to  the  defendant  in 
this  action.  By  section  149  of  the  code,  the  defendant  is  permitted 
to  include  in  his  answer  new  matter  constituting  a  counter-claim. 
A  counter-claim  must  be,  first,  a  cause  of  action  arising  out  of  the 
contract  or  transaction  set  forth  in  the  complaint  as  the  foundation 
of  the  plaintiff's  claim,  or  connected  with  the  subject  of  the  action; 
or,  second,  in  an  action  arising  on  contract,  any  other  cause  of  ac- 
tion arising  also  on  contract,  and  existing  at  the  commencement  of 
the  action.  The  demand  of  the  defendant,  set  out  in  the  answer, 
does  not  arise  out  of  the  contract  set  forth  in  the  complaint.  That 
contract  is  for  the  payment  of  rent  upon  a  lease  of  the  demised 
premises.  The  defendant's  demands  arise  from  the  wrongful  acts 
of  the  plaintiff  in  permitting  water  to  leak  and  run  into  the  prem- 
ises, and  in  causing  or  permitting  it  to  be  thrown  upon  the  prem- 
ises and  property  of  the  defendant.  These  acts  are  entirely  inde- 
pendent of  the  contract  of  leasing,  upon  which  the  action  is 
brought.  The  demands  are  not  connected  with  the  subject  of  the 
action — that  is,  the  rent  agreed  to  be  paid  for  the  use  of  the  prem- 
ises. The  defendant's  demands  are  for  a  series  of  injuries  to  his 
property,  deposited  upon  the  premises,  and  for  impairing  the  value 
of  the  possession.  It  would  be  a  very  liberal  construction  to  hold 
that,  in  an  action  for  rent,  injuries  from  trespasses  committed  by 
the  lessor  upon  the  demised  premises  might  be  interposed  as  a 
counter-claim.  The  acts  of  the  plaintiff  in  this  case  are  of  a  sim- 
ilar nature.  They  are  either  acts  of  trespass  or  negligence,  from 
which  the  injuries  of  the  defendant  accrued.     Such  a  construction 


ANSWER.  213 

could  only  be  supported  by  the  idea  that  the  subject  of  the  action 
was  the  value  of  the  use  of  the  premises.  But  when  there  is  an 
agreement  as  to  the  amount  of  the  rent,  that  value  is  immaterial. 
"Unless  the  acts  of  the  plaintiff  amount  to  a  breach  of  the  contract 
of  leasing,  they  are  not  connected  with  the  subject  of  the  action. 
In  the  case  of  Mayor  of  New  York  v.  Mabie,  3  Kern.  151,  it  was 
held  by  this  court  that  a  covenant  for  quiet  enjoyment  by  the 
lessor  was  implied  in  a  lease  under  seal  for  a  term  not  exceeding 
three  years,  since  as  well  as  before  the  revised  statutes ;  that  this 
covenant  was  broken  by  any  interference  with  the  possession  by 
the  lessor,  under  a  claim  of  right ;  consequently,  that  damages 
sustained  from  such  acts  might  be  recovered  in  an  action  for  rent. 
It  was  remarked  by  Denio,  J.,  in  giving  the  opinion  in  that  case, 
that  it  is  not,  however,  every  new  trespass  by  the  lessor  upon  the 
demised  premises  which  will  amount  to  a  breach  of  this  covenant. 
There  is  nothing  in  the  answer  in  this  case  tending  to  show  that 
any  of  the  acts  of  the  plaintiff  were  done  under  any  claim  of  right 
whatever.  They  did  not,  therefore,  amount  to  a  breach  of  the 
contract  created  by  the  lease,  and  the  injuries  sustained  by  the  de- 
fendant do  not  therefore  constitute  a  counter-claim  connected  with 
the  subject  of  the  action." 

In  the  case  of  Starbird  v.  Barrows,  43  N.  T.  200,  this  provision 
came  up  for  consideration  in  another  form.  In  that  case  the 
plaintiff  had  agreed  to  transport  by  canal  a  cargo  to  be  delivered 
by  the  defendants,  from  Bochester  to  New  York.  The  boat  was 
frozen  in  the  canal  and  delayed,  and  defendants  put  to  great  ex- 
pense in  preserving  the  cargo,  but  the  same  was  yet  injured.  In 
an  action  to  recover  for  injuries  done  the  boat  by  defendants  while 
bo  in  possession  to  take  care  of  the  cargo,  the  court  held  that  dam- 
ages occasioned  by  improper  delay  of  the  plaintiffs  in  transporting 
the  cargo  was  the  proper  subject  of  a  counter-claim.  In  Allen  v. 
Shackelton,  15  Ohio  St.  145,  it  was  ruled  that  to  a  petition  on  a 
mortgage  given  to  secure  the  purchase  money  on  a  sale  by  mort- 
gagee to  mortgagor  of  the  premises,  covered  by  the  mortgage,  the 
mortgagor  and  defendant  could  set  up  a  counter-claim  for  damages 
against  the  vendor  and  plaintiff  for  fraud  practiced  by  the  vendor 
in  the  sale  of  the  mortgage  premises.  The  court  say:  "By  sec- 
tion 93  of  the  code  of  civil  procedure,  it  is  provided  that  the  de- 
fendant may  set  forth  in  his  answer  as  many  grounds  of  defense, 
counter-claim,  and  set-off  as  he  may  have,  whether  they  be  such  aa 
have  been  heretofore  denominated  legal  or  equitable,  or  both  ;  and 
in  the  following  section  it  is  provided,  by  way  of  limitation  or  re- 


214  ANSWER. 


striction,  that  the  counter-claim  mentioned  in  the  last  section  must 
be  one  existing  in  favor  of  a  defendant  and  against  a  plaintiff,  be- 
tween whom  a  several  judgment  might  be  had  in  the  action,  and 
arising  out  of  the  contract  or  transaction  set  forth  in  the  petition 
as  the  foundation  of  the  plaintiff's  claim,  or  connected  with  the 
subject  of  the  action. 

"  It  seems  to  us  that  in  this  case,  the  allegations  in  the  answer, 
and  proofs  offered  in  their  support,  come  within  the  express  terms 
and  also  within  the  spirit  of  these  provisions  of  the  code.  The 
leading  object  of  the  statute  was  to  provide,  where  the  parties  were 
so  before  the  court  as  that  it  could  well  be  done,  that  the  rights 
and  claims  of  the  defendant,  growing  out  of  a  transaction,  should 
be  heard  and  settled  in  the  same  suit,  in  which  the  plaintiff  asserted 
his  claims,  arising  from  the  same  transaction,  thus  avoiding  mul- 
tiplicity of  suits,  and  at  the  same  time  securing  better  justice 
between  the  parties."  A  somewhat  similar  question  came  up  in  the 
case  of  Morgan  v.  Spangler,  20  Ohio  St.  38.  This  was  an  action 
of  replevin  brought  to  recover  a  certain  quantity  of  railroad  iron  ; 
the  plaintiffs  were  mortgagees  of  the  iron  ;  the  defendants  set  up  a 
lien  on  the  iron  made  by  levy  and  attachment ;  and  the  court  held 
that  a  counter-claim  might  be  set  up  by  the  creditors  having  lien 
by  attachment  or  levy  on  the  iron.  I  do  not  understand  this  case ; 
the  mortgagee  had  the  legal  title  to  the  iron  till  his  debt  was  paid, 
and  no  one  could  take  the  iron  out  of  his  hands ;  if  they  did,  he 
had  the  right  by  replevin  to  repossess  himself  of  the  possession. 
There  was  here  no  question  of  money ;  it  was  a  mere  question  of 
possession,  and  the  right  of  possession.  As  against  the  mortgagor, 
if  he  had  possession,  he  could  not  keep  that  possession  as  against 
his  mortgagee ;  nor  could  he  set  up  a  counter-claim  for  what  might 
be  coming  to  him  out  of  the  property  after  paying  the  mortgage 
debt.  These  execution  and  attachment  creditors  had  no  other  or 
greater  rights  than  the  mortgagor  had,  and  if  he  could  not 
set  up  a  counter-claim,  no  more  could  his  creditors  by  execution. 
The  execution  creditors  had  a  right,  not  to  defeat  his  action  of  re- 
plevin, but  to  file  a  bill  to  compel  the  sale  of  the  mortgaged  goods, 
and  the  proceeds  to  be  distributed  among  the  creditors  according 
to  their  respective  priorities.  What  these  creditors  in  fact  were 
allowed  to  do  was  to  convert,  unnecessarily,  an  action  of  replevin 
into  a  bill  in  chancery  to  redeem  the  mortgaged  goods,  and  so  en- 
force a  sale  and  secure  to  them,  after  paying  the  mortgaged  debts, 
what  might  be  left.  A  counter-claim  has  nothing  to  do  in  a  case 
founded  in  equity ;  equity  jurisdiction  dealt  with  all  such  questions 


ANSWER.  215 

without  the  aid  of  the  code  ;  counter-claim  was  introduced  to  pro- 
vide a  remedy  for  cross-claims  in  a  legal  action.  There  is  no  such 
thing  as  a  counter-claim  in  a  case  founded  on  principles  of  equity ; 
equity  dealt  with  all  such  questions  as  a  part  of  equity  jurisdiction; 
but  nowhere  does  the  code  justify  setting  up  matter  of  equitable 
jurisdiction  to  an  action  at  law,  unless  it  grows  out  of  the  same 
matter  the  plaintiff's  action  does.  In  this  case,  the  mortgage  was 
the  agreement,  and  the  possession  of  the  mortgaged  property  was 
the  subject  of  the  action.  The  attachment  liens  did  not  grow  out 
of  the  mortgage,  nor  out  of  the  right  to  the  possession.  The 
mortgagee  was  entitled  to  possession  against  the  mortgagor  and  all 
those  claiming  under  him,  as  these  creditors  did.  It  was  useless, 
then,  to  admit  a  practice  which  was  supported,  not  by  the  code, 
but  by  some  decisions  of  the  court.  There  is  no  authority  in  the 
code  to  convert  an  action  at  law  into  a  bill  in  chancery  by  way  of 
defense,  counter-claim,  or  set-off.  The  action,  if  for  money  only, 
must  be  tried  by  a  jury ;  there  is  no  ground  for  the  doctrine  that 
a  part  of  a  case  may  be  tried  by  a  jury  and  a  part  by  the  court. 
The  code  lends  no  countenance  to  such  an  absurdity,  but  declares 
that  the  character  of  the  plaintiff 's  action  shall  settle  how  service 
shall  be  made,  how  the  case  shall  be  tried,  and  whether  the  plaint- 
iff is  entitled  to  a  judgment  for  costs.  This  confusion  is  necessarily 
introduced  by  holding  that  what  is  matter  for  a  bill  in  equity  may 
be  set  up  as  an  answer  to  an  action  at  law.  This  distinction  must 
be  kept  in  mind :  that  a  counter-claim  can  only  be  properly  plead 
in  an  action  at  law ;  that  courts  of  equity  always  dealt  with  such 
matters  in  a  suit  in  equity;  whatever  facts  would  constitute  a 
counter-claim  in  an  action  at  law,  the  same  facts,  connected  with  a 
claim  set  up  in  equity,  could  always  by  answer  be  introduced  into 
the  case  so  that  complete  justice  might  be  done.  In  this  case, 
there  was  no  defense  to  the  suit  of  replevin  ;  on  the  facts  admitted 
the  plaintiff  was  entitled  to  possession  ;  and  the  rights  of  the  exe- 
cution and  attachment  creditors  of  the  mortgagors  had  a  distinct 
and  clear  remedy,  a  petition  in  equity  to  redeem  ;  and  hence  there 
was  no  necessity  to  introduce  such  a  mongrel  character  into  an 
action  in  replevin  under  the  name — a  false  one — of  a  counter-claim. 
In  the  prior  case  of  a  mortgage  of  land,  it  was  wrong  to  call  the 
fraud  in  the  Bale  a  counter-claim;  it  was  matter  in  equity  for  an 
answer,  before  the  code  and  since  the  code.  When  a  party  went 
into  equity  he  had  to  do  equity;  if  he  committed  a  fraud  in  the 
Bale  of  land  on  which  lie  took  a  mortgage  for  balance  of  purchase 
money,  and  went  into  equity  to  foreclose  that  mortgage,  tho  vendeo 


216  ANSWER. 

could  always  set  up  the  fraud  to  cut  down  the  amount  of  the  mort- 
gage ;  there  was  no  counter-claim ;  it  was  simply  an  answer ;  and 
it  is  the  same  thing  under  the  code  in  a  case  founded  on  principles 
of  equity.  Thero  is,  then,  no  counter-claim  in  a  suit  in  equity ;  it 
is  simply  a  matter  for  answer  :  besides,  a  counter-claim  is  a  case 
in  which  a  money  demand  is  set  up,  so  that  the  judgment  may  be 
for  money  in  favor  of  the  party  for  whom  the  largest  verdict  is 
returned.  If  you  want  something  besides  money,  you  must  file  an 
original  petition  in  equity,  praying  for  the  relief  you  want,  and 
meantime  obtaining,  as  the  law  authorizes,  an  injunction  restrain- 
ing proceedings  in  the  action  at  law.  Equitable  and  legal  matters 
can  not  both  be  compressed  into  the  same  action,  save  when 
they  grow  ont  of  the  same  transaction  ;  and  even  then  no  one  knows 
how  the  case  is  to  be  tried,  since  the  code  nowhere  provides  for 
the  proceedings  in  and  trial  of  such  a  case.  The  action  must  be 
for  the  recovery  of  money  only,  or  it  must  be  a  petition  in  equity. 
If  the  relief  in  equity  is  for  money,  as  well  as  in  the  action  at  law, 
then  there  may  be  a  joinder  of  the  two  causes,  and  not  otherwise, 
since  the  code  nowhere  provides  for  an  action  of  this  double  char- 
acter. How  is  service  to  be  made  in  such  an  action?  The  code 
does  not  provide  for  it.  How  is  it  to  be  tried,  by  court  or  jury? 
The  whole  case  is  to  be  tried  by  the  same  tribunal ;  there  is  no 
provision  in  the  code  for  a  part  of  a  case  to  be  tried  by  a  court 
and  a  part  by  a  jury.  And  how  are  the  costs  to  be  disposed  of? 
In  the  one  class  it  follows  the  judgment ;  in  the  other,  it  is  at  the 
discretion  of  the  court.  Equity  and  law  are  two  separate  and  dis- 
tinct matters  of  jurisdiction  under  the  code,  as  before  the  code ; 
and  it  may  be  well  and  conducive  to  a  clear  understanding  of  the 
law,  if  this  fact  was  distinctly  recognized  and  acted  upon. 

Crozier,  C.  J.,  in  the  case  of  Leavenson  v.  Lapstone,  3  Kan. 
523,  525,  says :  "  The  section  referred  to  does  not  apply  after 
the  rendition  of  judgments  upon  cross  demands.  It  applies  only  in 
cases  where  the  defendant  sets  up  his  cross-demand  before  judg- 
ment is  rendered  against  him.  When  the  claims  on  each  side  are 
adjusted,  the  party  establishing  the  larger  is  entitled  to  judgment 
for  the  excess.  If  the  action  is  brought  by  an  assignee,  the  de- 
fendant is  not  deprived  of  the  right  to  counter-claim  or  set  off  his 
demand  against  the  assignor,  and  although  he  may  not  be  entitled 
to  judgment  against  the  assignee  for  the  excess,  yet  he  may  pre- 
vent judgment  against  himself  if  his  demand  equals  or  exceeds 
that  against  him."  The  court  also  held  that  if  each  party  brought 
actions,  and  recovered  judgments,  on  a  motion  to  set  up  one  against 


ANSWER.  217 

the  other,  the  lien  for  attorneys'  fees,  could  not  be  avoided  by  the 
set-off. 

In  the  case  of  the  National  Fire  Ins.  Co.  v.  McKay,  21  N .  Y. 
191,  196,  Comstock,  Ch.  J.,  says  :  "  I  apprehend  that  a  counter- 
claim, when  established,  must  in  some  way  qualify  or  must  defeat 
the  judgment  to  which  the  plaintiff  is  otherwise  entitled.  In  a 
foreclosure  suit,  a  defendant  who  is  personally  liable  for  the  debt, 
or  whose  land  is  bound  by  the  lien,  may  probably  introduce  an  off- 
set to  reduce  or  extinguish  the  claim.  But  where  his  personal 
liability  is  not  in  question,  and  where  he  disclaims  all  interest  in 
the  mortgage  premises,  I  do  not  see  how  he  can  demand  a  judg- 
ment against  the  plaintiff  on  a  note,  a  bond,  or  a  covenant.  The 
appellant  has,  as  he  insists,  a  cause  of  action  against  the  plaintiff 
upon  a  broken  covenant;  but  that  cause  of  action,  if  it  exists,  does 
not  enable  him  to  resist  or  modify  the  relief  to  which  the  plaintiffs 
are  entitled."  If  a  counter-claim  must  exist  in  favor  of  the  de- 
fendant, against  the  plaintiff  (Bates  v.  Bosenkrans,  37  N.  Y.  409), 
the  right  of  the  plaintiff  to  claim,  and  the  defendant  to  counter- 
claim, must  be  reciprocal.  Mayor,  etc.,  of  New  York  v.  Parker- 
view  Steamship  Co.,  12  Abb.  300  ;  S.  C,  21  How.  289.  For  where 
there  is  no  claim  on  the  part  of  the  plaintiff,  there  can  not,  strictly 
speaking,  be  a  counter-claim.  Bellinger  v.  Craigue,  41  N.  Y.  116. 
A  counter-claim  must  contain  not  only  the  substance  of  what  is 
necessary  to  sustain  an  action  in  favor  of  the  defendant  against 
the  plaintiff,  but  it  must  also  operate  in  some  way  to  defeat  in 
whole  or  part  the  plaintiff's  right  of  recovery.  Mattoon  v.  Baker, 
24  How.  329. 

A  defendant  may  elect  to  set  up,  by  way  of  counter-claim,  a 
cause  of  action,  or  bring  a  cross-action  on  it.  It  is  optional  with 
him  which  course  he  will  pursue.  Peck  v.  Minot,  4  Bob.  323 ; 
Lorraine  v.  Long,  6  Cal.  452 ;  Gillespie  v.  Torrance,  25  N.  Y.  306. 
An  action  for  equitable  relief  is  not  barred  because  the  plaintiff 
might  have  interposed  the  claim  as  a  defense  in  a  former  suit. 
Siemon  v.  Schurck,  29  N.  Y.  598 ;  Kerr  v.  Hays,  35  N.  Y.  331. 

The  validity  of  a  counter-claim  is  to  be  determined  by  the  in- 
quiry, whether  or  not  the  substance  of  the  facts  stated  would  con- 
stitute a  cause  of  action  on  behalf  of  the  defendant  against  the 
plaintiff,  if  the  plaintiff  had  not  sued  the  defendant.  In  other 
words,  the  statement  of  a  counter-claim  is  a  petition  by  the  de- 
fendant against  the  plaintiff,  and  must  contain  facts  which  consti- 
tute a  cause  of  action.  If  it  does  not,  a  demurrer  will  lie  to  it. 
Vasscar  v.  Livingston,  13  N.  Y.  218 ;  S.  C,  4  Duer,  285.    If  the 


218  ANSWER. 


alleged  counter-claim  consists  of  facts  which  arc  insufficient  to  bar 
a  recovery  or  to  affect  the  amount  of  his  recovery,  the  plaintiff 
should  have  judgment,  notwithstanding  there  is  no  reply  filed 
denying  the  facts.  Van  Valen  v.  Lapham,  13  How.  240;  S.  C, 
5  Duer,  689.  Where  the  same  facts  constitute  both  a  bar  and  also 
a  counter-claim,  the  answer  should  show  affirmatively  in  which 
aspect  the  facts  are  presented.  Burrall  v.  De  Groot,  5  Duer,  375  ; 
Bates  v.  Eosenkrans,  23  How.  98 ;  S.  C,  34  lb.  626. 

In  an  action  on  a  note  by  an  assignee,  it  was  held  that  a  cause 
of  action  existing  only  against  the  payee  could  not  be  set  up  as  a 
counter-claim  or  set-off,  although  the  plaintiff  received  the  note 
from  payee  after  its  maturity.  But  where  the  facts  alleged  as  a 
defense  show  the  invalidity  of  the  note  itself  in  the  hands  of  the 
payee,  either  for  want  or  failure  of  consideration,  such  facts  are 
admissible  in  favor  of  the  maker,  as  against  an  assignee  thereof, 
after  maturity.  Wiltsie  v.  Northam,  3  Bosw.  162 ;  Cummings  v. 
Morris,  25  N.  Y.  625.  This  decision  is  founded  on  the  principle 
decided  in  Chandler  v.  Drew,  6  N.  H.  469,  and  McDuffie  v.  Dame, 
11  N.  H.  244,  that  the  equity  to  which  an  assignee  or  indorsee 
after  maturity  is  held,  is  an  equity  growing  out  of  the  note  itself, 
and  not  from  other  claims  existing  in  favor  of  the  defendant 
against  the  payee,  unless  the  assignee  or  indorsee  had  full  knowl- 
edge of  the  existence  of  such  set-off.  A  counter-claim  will  always 
be  admissible,  but  not  a  set-off;  the  former  is  connected  with  the 
claim  of  the  assignee,  but  the  set-off  is  an  independent  and  dis- 
tinct cause  of  action,  having  no  connection  with  the  plaintiff's 
cause  of  action. 

III.  Set-off. 

Sec.  97.  A  set-off  can  only  be  pleaded  in  an  action  founded  on 
a  contract  and  must  be  a  cause  of  action  arising  upon  a  contract, 
or  ascertained  by  the  decision  of  the  court. 

It  will  thus  be  seen  that  set-off  remains  as  it  always  was,  with 
the  single  exception  of  a  claim  or  cause  of  action,  ascertained  by 
the  decision  of  the  court.  Judgments  under  prior  statutes  were 
not  the  subject  of  a  set-off.  If  the  judgment  was  one  of  the  same 
court,  a  set-off,  after  judgment,  might  be  made  by  the  order  of  the 
court,  on  motion,  by  applying  the  one  judgment  against  the  other. 
This  section  would  seem  to  authorize  a  defendant  to  set  off  a  judg- 
ment which  he  may  have  in  another  court  against  the  plaintiff,  and 
thus  avoid  the  expense  of  the  second  suit.  It  is  true  the  code 
says,  "  ascertained  by  the  decision  of  the  court,"  which  would  seem 


ANSWER.  219 

to  restrict  it  to  judgments  remaining  in  the  court  where  the  suit  is 
pending.  This  is  surely  too  narrow  a  construction  to  give  to  the 
section,  since  it  would  render  it  almost  nugatory.  If  the  language 
had  been  of  a  court,  then  there  could  have  been  no  room  for  con- 
troversy ;  nor  could  there  have  been  if  the  word  judgment  had 
been  used.  In  the  effort  of  the  law-makers  to  ignore  well-settled 
legal  terms,  they  have  repeatedly  left  their  meaning  open  to  debate. 
If  the  judgment  must  be  a  judgment  of  the  court  where  the  suit  is 
pending,  then  no  really  new  remedy  is  afforded ;  substantially  the 
same  thing  could  have  been  done  before  ;  and  it  would  be  imputing 
absolute  fatuity  to  the  commissioners  whose  work  this  code  is,  to 
suppose  that  they  designed  to  restrict  it  in  any  such  manner.  A 
judgment  ought  to  be  the  subject  of  set-off  as  well  as  a  promissory 
note,  bond,  bill,  etc. ;  and  if  it  ought  to  be  allowed  to  be  a  set-off  in 
one  court,  so  equally  ought  it  to  be  if  it  is  remaining  on  record  in 
any  other  court.  A  judgment  is  the  highest  evidence  of  indebted- 
ness, and  surely  if  a  claim  for  goods  sold  ought  to  be  applied  to  can- 
cel a  debt  due  from  one  to  another,  a  judgment  ought  to  be  so  ap- 
plied. We  hold,  therefore,  that  the  code  allows  judgments  gener- 
ally to  be  the  subject  of  a  set-off. 

A  set-off  not  replied  to  is  admitted  ;  and  if  it  shows  a  sum  duo 
the  defendant,  after  satisfying  the  plaintiff's  claim,  he  is  entitled  to 
a  judgment  for  that  sum.     Potter  v.  Smith,  9  Pr.  262. 

So  the  defendant  may  include  in  a  single  statement  of  set-off,  as 
many  different  items  of  set-off  as  he  may  have.  "  This,"  says  the 
judge,  in  the  case  of  Eanney  v.  Smith,  6  Pr.  420,  "  was  admissible 
in  a  plea  under  the  system  superseded,  although  a  declaration 
formed  in  the  same  way  would  have  been  bad  for  duplicity.  The 
general  rule  was  that,  in  point  of  form,  the  plea  of  set-off  should, 
contain  all  the  requisites  essential  to  the  validity  of  other  pleas  in 
law.  1  Chit.  PI.  495  ;  Barb,  on  Set-off,  79.  Duplicity,  however,  in 
a  plea  of  set-off,  was  not  a  cause  of  dcmui*rer  ;  in  other  words,  a  de- 
fendant was  permitted  to  include  in  the  plea  any  and  all  debts  or 
demands,  which  by  law  he  was  allowed  to  set  off.  Barb,  on  Set- 
off, 83;  1  Chit.  PI.  457;  1  East,  369.  It  was  not  objectionable  to 
state  in  the  same  plea  of  set-off,  any  number  of  debts  or  demands 
which  the  law  allowed  to  bo  set  off.  Nor  is  there  now  any  objec- 
tion to  it  under  the  code.  Again,  lb.  422  :  When  two  or  more 
notes,  judgments  or  bonds,  or  other  distinct  demands  are  intended 
to  be  Be1  off,  each  of  them  should  be  separately  and  particularly  de 
scribed,  with  all  the  allegations  or  averments  necessary  to  show 
the  liability  of  the  plaintiff,  and  so  as  to  enable  him  in  his  reply  to 


220  ANSWER. 

take  issue,  by  denying  any  of  the  material  allegations  pertain- 
ing to  each  note,  judgment  or  bond,  or  other  particular  demand  ; 
or  to  avoid  the  same  by  alleging  new  matter.  But  all  demands 
constituting  the  set-off  may  be  contained  in  the  same  statement  of 
new  matter  in  the  answer ;  each  demand,  which,  in  a  complaint, 
should  be  stated  separately,  as  constituting  by  itselfa  cause  of  action, 
being  separately  described  or  stated,  with  the  necessary  averments, 
and  constituting  the  defense  of  set-off."  There  would  seem  to  be  no 
room  to  doubt  that  this  is  a  correct  view  of  the  pleading  in  relation  to 
a  set-off.     Stanbery  v.  Smyth,  13  Ohio  St.  495 ;  4  lb.  586  ;  5  lb.  59, 66. 

The  subject  of  set-off  is  entitled  to  some  further  consideration. 
The  New  York  code  includes  set-off  under  the  name  of  counter- 
claim ;  under  the  codes  of  Ohio,  Kansas,  and  Nebraska,  set-off  is 
made  itself  a  ground  of  defense.  All  these  codes  declare  that  in 
case  of  an  assignment  of  a  thing  in  action,  the  action  by  the  as- 
signee shall  be  without  prejudice  to  any  set-off  or  other  defense 
now  allowed.  Code,  sec.  26.  It  will  be  seen  that  no  defense  or  set- 
off can  be  allowed  against  an  assignee  or  indorsee  in  favor  of  the 
defendant  other  than  what  was  allowable  by  the  law  as  it  stood 
when  the  code  was  adopted.  The  words  now  allowed  refer  to  the 
law  as  it  then  was.  Hence  it  becomes  important  to  ascertain  what 
the  law  then  was. 

There  is  one  proposition  as  to  which  there  is  no  dispute :  the 
indorser  of  a  negotiable  bill  or  note  with  notice  or  overdue,  or  the 
assignee  of  a  non-negotiable  bill  or  note  bona  fide  for  a  valuable 
consideration,  takes  the  note  or  bill  subject  to  all  equities  or  de- 
fenses growing  out  of  the  note  or  bill  itself,  as  if  without  consid- 
eration, or  on  a  failure  of  consideration.  But  there  is  some  conflict 
on  another  point,  to  wit,  whether  the  defendant  can  set  up  a  sep- 
arate and  independent  cause  of  action  by  way  of  set-off,  as  against 
one  who  holds  the  bill  or  note  bona  fide  for  a  valuable  considera- 
tion and  without  any  notice  of  the  existence  of  this  set-off?  On 
this  point  there  is  some  conflict  of  authority.  In  the  early  origin 
of  this  doctrine  of  equities  in  negotiable  instruments  taken  overdue, 
the  defense  or  equity  always  grew  out  of  the  facts  connected  with 
the  origin  of  the  note  or  bill ;  then  came  up  the  cases  of  a  set-off. 
In  Chandler  v.  Drew,  6  N.  H.  469,  the  court  held  that  in  a  suit  upon 
a  negotiable  promissory  note  in  the  name  of  the  indorsee  to  whom 
it  has  been  bona  fide,  and  for  a  valuable  consideration,  transferred  a 
demand  in  favor  of  the  maker  against  the  indorser,  is  not  admissible 
as  a  set-off,  although  the  note  may  have  been  a  discredited  note  when 
the  indorsee  took  it.    Eichardson,  C.  J.,  delivered  the  opinion  of  the 


ANSWER.  221 

court.  "At  the  common  law,"  he  says,  "  there  was  no  set-off  of  the 
unconnected  mutual  demands  and  debts  between  the  parties  in  an 
action.  Each  party  had  his  action  to  enforce  the  payment  of  his 
claims  against  the  other.  The  law  of  set-off  before  judgment  is 
regulated  entirely  by  statute.  When  the  mutual  claims  of  parties 
have  passed  into  judgment,  it  is  the  practice  of  courts  to  set  off 
one  judgment  against  another.  This  practice  does  not  rest  upon 
any  statute,  but  upon  the  general  jurisdiction  of  courts  over  the 
suitors  in  them.  It  is  an  equitable  jurisdiction  frequently  exer- 
cised. Mitchell  v.  Oldfield,  4  D.  &  E.  123 ;  Bourne  v.  Bennett,  4 
Bingham,  423 ;  Barrett  v.  Barrett,  8  Pick.  342  j  Simpson  v.  Hart, 
14  Johns.  63  ;  3  East,  149 ;  1M.&S.  240. 

"Our  statute  of  February  8,  1791,  provides  that  where  there  are 
mutual  debts  or  demands  between  plaintiff  and  defendant,  one 
debt  or  demand  may  set  off  against  the  other.  This  statute,  which 
is  a  transcript  of  the  English  statute  with  very  slight  alterations, 
and  is,  in  substance,  the  same  as  the  statutes  of  New  York  and 
Massachusetts,  is  a  very  beneficial  law,  is  in  its  nature  remedial, 
and  has  always  received  a  very  liberal  construction. 

"  The  statute  speaks  of  mutual  debts  between  the  plaintiff  and 
defendant.  But  this  has  been  construed  to  mean  the  real  and  not 
merely  the  nominal  plaintiff  and  defendant. 

"Thus,  if  the  payee  of  a  note  bring  a  suit  in  the  name  of  an 
indorser,  but  for  his  own  benefit,  the  payee  is  considered  as  the 
plaintiff  within  the  meaning  of  the  statute.  6  N.  H.  28 ;  Moody 
v.  Towle,  4  Greenl.  415  ;  Carr  v.  Hinchcliff,  4  B.  &  C.  547;  Kuggles 
v.  Keeler,  3  Johns.  263 ;  Cains  v.  Wisban,  13  Johns.  9 ;  10  lb.  45, 
396 ;  Jarvis  v.  Chappie,  2  Chitty,  387. 

"It  has  been  held  that  equitable  debts  or  demands  are  within  the 
meaning  of  the  statute.  Thus  a  bond  assigned  to  the  defendant, 
although  such  assignment  gives  to  the  assignee  no  legal  right  of 
action  in  his  own  name,  is  a  good  set-off.  Murray  v.  Williamson, 
3  Binney,  185  ;  Tuttle  v.  Beebe,  8  Johns.  152. 

"  Where  a  factor,  dealing  for  a  principal,  but  concealing  the  prin- 
cipal, delivers  goods  in  his  own  name,  the  person  dealing  with  him 
has  a  right  to  consider  him  the  principal,  and  may  set  off  any  claim 
he  has  against  the  factor  in  an  action  brought  by  the  principal. 
Eaboneu.  Williams  and  George  v.  Claggett,  7  D.&E.  360.  The  law  is 
Otherwise  in  the  case  of  a  broker.     Barring  v.  Corrie,  2  B.  &  A.  137. 

"The  distinction  is  grounded  upon  the  circumstance  that  a  factor 
has  a  right  to  sell  in  his  own  name,  but  a  broker  in  so  doing  ex- 
ceeds his  authority. 


222  ANSWER. 

"Where  one  of  a  firm  appears  to  the  world  to  be  the  only  person 
engaged  in  the  business,  and  to  be  solely  interested,  if  ho  sells  goods 
the  purchaser  may  avail  himself  of  any  claim  he  has  against  such 
person  in  answer  to  an  action  in  the  name  of  the  firm.  7  D.  &  E. 
3G1,  note. 

"Where  a  bond  is  taken  in  the  name  of  one  person  for  the  use  of 
another,  a  sot-off  of  claims  against  the  person  for  whose  use  the 
bond  was  given  is  admissible  in  a  suit  on  the  bond.  Bottlin  v. 
Brooks,  cited  1D.&E.  621. 

"  But  in  an  action  against  two  persons  these  several  demands 
against  the  plaintiff  are  not  admissible  as  a  set-off,  either  in  a  court 
of  law  or  equity.  4  N.  H.  236  ;  6  lb.  28 ;  11  Johns.  70 ;  4  Johns. 
Ch.  11 ;  3  lb.  351 ;  2  Merrivale,  121,  122. 

"It  thus  appears  that  while  courts  have  adhered  strictly  to  the 
rule  prescribed  by  the  statute,  they  have  been  very  liberal  in  the 
application  of  it,  and  have  looked  beyond  the  parties  upon  the  rec- 
ord to  the  real  parties,  and  have  applied  the  rule  accordingly. 

"When  the  mutual  demands  between  the  parties  upon  the  record 
are  not  in  their  nature  assignable  at  law,  the  circumstance,  that  a 
third  person  has  acquired  an  interest  in  the  demand  of  the  plaint- 
iff, will  not,  in  general,  preclude  a  set-off  of  the  defendant's  claim 
against  the  plaintiff.  Sanborn  v.  Little,  3  N.  H.  539.  The  reason  of 
it  is  that,  in  such  a  case,  it  is  just  and  reasonable  that  the  assignee 
should  stand  in  the  place  of  the  assignor. 

"We  were  at  first  inclined  to  think  that  the  indorsee  of  a  discred- 
ited note  might  be  considered  as  standing  in  the  place  of  the 
indorser.  But  there  is  an  important  difference  between  demands 
which  are  negotiable  and  those  which  are  not  so.  In  the  one  case 
the  defendant  has,  by  his  contract,  made  the  legal  title  assignable, 
and  has  agreed  to  pay  to  any  one  who  may  have  the  legal  title. 
In  the  other  case  he  has  made  no  such  contract.  When  a  note  is 
negotiable  it  may  be  assigned,  and  the  legal  title  pass  to  the  as- 
signee, whether  it  is  discredited  or  not,  and  whether  the  maker  has 
a  set-off  against  the  payee  or  not.  When  a  discredited  note  has 
been  in  reality  assigned  for  a  valuable  consideration,  the  debt  is 
due  to  the  assignee.  And  in  a  suit  upon  the  note,  in  the  name  of 
the  indorsee  against  the  maker,  the  indorsee  and  the  maker  are  the 
real  as  well  as  the  nominal  parties.  And  the  indorsee  can  not  be  con- 
sidered as  standing  in  the  place  of  the  indorser,  unless  the  note  can 
be  considered  as  still  due  to  the  indorser;  or  the  indorser,  by  tak- 
ing the  discredited  note,  as  having  made  the  set-off  his  own  debt, 
either  of  which  is  repugnant  to  common  sense. 


ANSWER.  223 

"  It  would  seem,  therefore,  that  the  set-off  in  this  case  was  not  ad- 
missible, because  the  demands  of  the  plaintiff  and  the  defendant 
can  not  be  considered,  in  any  point  of  view,  as  mutual  demands ; 
and  so  the  claim  of  the  defendant  is  not  within  the  statute. 

"  There  are,  however,  cases  which  are  directly  in  point  in  favor 
of  the  defendant,  and  which  must  be  examined.  These  are  the 
cases  of  Sargent  v.  Southgate,  5  Eich.  312 ;  Ford  v.  Stuart,  19 
Johns.  342,  and  O'Callaghan  v.  Sawyer,  5  Johns.  118. 

"These  decisions  are  placed  entirely  on  the  ground  that  he,  who 
takes  a  discredited  note,  takes  it  subject  to  all  objections  and 
equities  to  which  it  is  liable  in  the  hands  of  the  indorser ;  and  that 
a  set-off  is  an  equity  within  the  meaning  of  this  rule. 

"It  is,  without  question,  a  very  just  and  equitable  rule  that  he, 
who  takes  a  discredited  note,  shall  take  it  subject  to  any  legal  or 
equitable  defense  to  which  it  was  liable  in  the  hands  of  the  pre- 
vious holder.  But  is  a  set-off  a  defense  within  the  meaning  of  this 
rule? 

"  Strictly  speaking,  a  set-off  is  not  a  defense.  "When  a  set-off  is 
made,  mutual  claims  to  an  equal  amount  on  each  side  become, 
under  the  statute,  a  satisfaction  of  each  other.  They  operate  as  a 
payment  of  each  other.  When  the  claim  of  the  plaintiff  is  wholly 
paid  by  a  set-off,  the  action  is  at  an  end,  and  he  may  be  liable  for 
costs.  But  his  claim  has  not  been  defeated  by  a  defense,  but  has 
been  paid  by  the  extinguishment  of  claims  against  him  to  an  equal 
amount.  And,  with  the  exception  of  the  cases  to  which  we  have 
just  adverted,  no  case  has  occurred  to  us  in  which  a  set-off  has 
ever  been  considered  as  a  defense,  within  the  meaning  of  the  rule 
on  which  the  decisions  in  those  cases  rest. 

"  In  order  to  determine  whether  a  set-off  be  within  that  rule,  we 
must  advert  to  the  statute  of  set-off,  and  see  what  a  set-off  is,  and 
when  it  is  authorized  by  the  statute.  The  question  is  not  whether 
there  should  be  a  set-off  in  a  case  like  this,  but  whether  there  can 
be  one  under  the  statute.  This  last  question  does  not  seem  to  have 
been  examined  or  considered  by  the  courts,  either  in  Massachusetts 
or  New  York,  in  the  cases  where  it  was  decided  that  a  set-off  was 
admissible  in  a  case  like  this. 

"  The  statute  authorizes  a  set-off  of  mutual  demands  between  the 
plaintiff  and  defendant.  All  mutual  demands,  equitable  as  well  as 
legal,  between  the  real  parties  to  the  suit,  are  within  the  statute. 
This  is  the  utmost  extent  of  the  rule  prescribed  by  the  statute. 
And  from  the  very  nature  of  it,  nothing  can  be  set  off  but  a  claim 
against  a  person  whom  the  defendant  lias  a  right  to  consider  the 


224  ANSWER. 

real  plaintiff.  But  in  this  case  the  defendant  made  the  note  paya- 
ble to  the  order  of  the  payee;  and  it  having  been  actually  trans- 
ferred to  the  indorsee,  what  right  has  the  defendant  to  consider 
the  indorser  as  the  real  plaintiff?  On  what  reasonable  ground 
can  the  indorser  be  so  considered  by  any  person?    We  see  none. 

"  The  circumstance,  then,  that  the  account  of  this  defendant  is  a 
claim  against  the  indorser,  and  would  be  a  good  set-off,  if  the  in- 
dorser were  the  real  plaintiff,  renders  it  inadmissible,  under  the 
statute,  in  this  case.  From  the  very  nature  of  a  set-off,  an  account 
of  the  maker  of  a  negotiable  note  against  the  payee  can  not  run 
with  the  note,  and  be  a  defense  to  it,  in  the  hands  of  any  person  to 
whom  it  has  been  legally  transferred.  The  moment  the  note  is 
actually  transferred,  the  demands  must  cease  to  be  mutual,  and  of 
course  must  cease  to  be  within  the  statute. 

"  In  New  York,  it  is  now  settled  that  a  set-off  is  only  available 
in  consequence  of  the  statute,  and  in  the  manner  there  pointed  out, 
that  when  a  defendant  can  not  place  his  defense  within  its  provis- 
ions, he  can  derive  no  benefit  from  it,  and  that  a  set-off  can  not  be 
made  of  a  debt  or  demand  against  any  one,  other  than  the  plaintiff 
on  the  record.     Johnson  v.  Bridge,  6  Cowen,  693. 

"And  in  Massachusetts,  it  seems  to  be  considered,  in  Peabody  v. 
Peters,  5  Pick.  1,  that  the  claim  of  the  defendant  in  a  case  like  this 
is  not  admissible,  under  the  statute,  as  a  set-off,  and  that  the  only 
way  in  which  the  defendant  can  avail  himself  of  a  set-off  is  as  a 
defense  under  the  general  issue.  This  is,  without  doubt,  the  true 
view  of  the  subject,  if  the  defendant  can  avail  himself  of  the  set-off, 
at  all,  in  the  suit.  But  the  mistake  seems  to  us  to  lie,  in  holding 
that,  what  may  be  a  set-off  under  the  statute,  between  the  maker 
and  the  payee  of  the  note,  and  can  be  a  set-off  only  between  them, 
must  be  a  good  defense  against  the  note  in  the  hands  of  an  in- 
dorsee, who  took  it  after  it  was  discredited,  although  in  such  a  case 
the  statute  does  not  apply.  What  makes  a  set-off  admissible  ?  It 
is  conceded  on  all  sides  that  it  is  the  statute  alone.  How,  then, 
there  can  be  a  set-off  in  a  case  where  the  statute  does  not  apply, 
we  are  wholly  at  a  loss  to  conceive. 

"  There  is  no  sound  reason  why  there  should  be  a  set-off  in  cases 
of  this  kind.  It  is  true  that  there  may  be  cases  of  hardship  upon 
the  defendant,  without  a  set-off.  But  that  happens  under  all  gen- 
eral rules.  They  occur  as  rarely  under  the  rule  which  excludes 
this  set-off  as  under  any  other  rule.  If  the  maker  of  a  note  per- 
form services  for,  or  deliver  goods  to,  the  payee,  he  has  only  to  see 
that  they  are  applied  to  the  payment  of  the  note,  and  he  can  never 


ANSWER.  .    225 


'suffer.  If  he  suffers  by  having  his  set-off  rejected,  it  is  through 
his  own  neglect. 

"  On  the  other  hand,  nothing  is  more  common  than  the  transfer 
of  discredited  notes.  And  if  there  can  be  a  set-off  in  these  cases,  it 
must  be  of  the  general  balance  due  the  maker,  upon  an  adjustment 
of  all  demands  between  him  and  the  payee.  There  can  be  no 
sound  reason  why  a  set-off  should  be  admitted,  if  the  maker,  on 
an  adjustment  of  all  demands  between  them,  is  indebted  to  the 
payee  in  the  amount  of  the  note.  And  if  the  indorsee  is  com- 
pelled, after  having  paid  the  indorser  the  amount  of  the  note,  to 
litigate  all  demands  and  accounts  between  the  maker  and  the 
payee,  to  which  he  is  an  entire  stranger,  and  subjected  to  all  the 
expense  of  the  litigation,  if  the  balance  in  favor  of  the  maker  turns 
out  to  be  equal  to  the  amount  of  the  note,  the  case  of  the  indorsee 
may  be  quite  as  hard,  in  some  instances,  as  any  that  can  occur,  if 
the  set-off  is  rejected. 

"  Besides,  if  a  claim  in  favor  of  the  maker  against  the  payee  is  a 
legal  set-off  to  a  discredited  note,  a  claim  in  his  favor,  against  any 
other  legal  holder  of  the  note  through  whose  hands  it  may  have 
passed,  must  be  equally  so.  And  this  may  lead  to  cases  of  still 
greater  hardship  on  the  side  of  an  innocent  indorsee." 

In  the  case  of  McDuffie  v.  Dame,  11  N.  H.  244,  the  court  held 
that,  in  an  action  by  the  indorsee  against  the  maker  of  a  negotia- 
ble note,  if  the  defendant  files  a  set-off  against  the  note,  and  intro- 
duces evidence  that  the  note  was  not  indorsed  until  discredited,  he 
will  be  admitted  to  sustain  his  set-off,  unless  the  plaintiff  shows 
that  he  took  the  note  bona  fide  for  a  valuable  consideration.  This 
last  decision  does  not  conflict  against  the  former,  because  in  that 
case  the  conditions  here  laid  down  were  present.  It  would  be  a 
fraud  for  one  to  buy  a  note  against  which  he  knew  the  maker  had 
a  claim  sufficient,  or  more  than  sufficient,  to  balance  it,  especially 
if  the  indorser  is  insolvent.  A  transfer  under  such  circumstances 
must  always  be  for  the  purpose  of  avoiding  the  set-off.  But  these 
cases  do  not  apply  where  the  claim  of  the  defendant  amounts  to 
what  is  a  payment.  A  payment  is  always  a  defense,  though  not 
indorsed  on  the  note,  and  resting  in  parol.  Whatever  the  maker 
could  give  in  evidence,  under  a  plea  of  payment,  can  always  be 
given  in  evidence,  under  a  like  plea,  against  one  who  took  the  note 
when  overdue.  A  payment  is  attached  to  the  note,  and  goes  along 
with  it,  save  in  one  who  is  a  bona  fide  indorsee  before  duo,  for  a 
valuable  consideration.  lie  is  here  excluded  on  tho  gi-ound  of 
vol.  i — 15 


226  ANSWER. 


public  policy,  encouraging  the  circulation  of  negotiable  notes  and 
bills  of  exchange. 

If  we  examine  the  code,  it  will  be  found  substantially  to  contain 
the  same  provisions  as  the  New  Hampshire  act.  The  act  of  1824 
was  in  these  words :  "  That  in  all  actions  and  suits  brought  on 
any  specialty,  contract,  bill,  note,  promise,  or  account,  it  shall  be 
lawful  for  the  defendant  to  plead  the  general  issue,  and  at  the  same 
time  give  notice  in  writing,  to  the  plaintiff  or  his  attorney,  of  any 
debt,  contract,  book-account,  or  other  liquidated  demand  against 
the  plaintiff,  which  he  may  be  desirous  to  have  set  off  and  allowed 
to  him  in  such  action  or  suit,  or  of  any  payment  or  payments  he. 
may  have  made  on  such  specialty,  contract,  bill,  note,  promise,  or 
account;  and  the  court  shall  render  judgment  for  the  party,  whether 
plaintiff  or  defendant,  in  whose  favor  the  balance  may  be  found, 
for  the  amount  of  such  balance  and  costs."  Stat,  of  1841,  p.  850. 
The  provisions  of  the  code  are  substantially  the  same.  Section  93 
provides  that  "the  defendant  may  set  forth  in  his  answer  as  many 
grounds  of  defense,  counter-claim,  or  set-off,  as  he  may  have." 
Section  97  says  that  "  a  set-off  can  only  be  pleaded  in  actions 
founded  on  contract,  and  must  be  a  cause  of  action  arising  upon 
contract,  or  ascertained  by  the  decision  of  the  court."  And  section 
371,  as  to  the  rendition  of  judgment,  provides  in  effect  for  a  judg- 
ment in  favor  of  the  party  in  whose  favor  a  balance  is  found.  In 
connection  with  these  provisions,  section  26  must  be  cited,  which 
provides  that  in  case  of  an  assignment  of  a  chose  in  action,  the 
action  by  the  assignee  shall  be  without  prejudice  to  any  set-off,  or 
other  defense  now  allowed ;  but  this  does  not  apply  to  negotiable 
bills  of  exchange,  bonds,  and  promissory  notes  transferred  in  good 
faith,  upon  a  good  consideration,  before  due. 

These  are  all  the  provisions  of  the  code,  and  it  is  clear  that  it  is 
substantially  the  terms  of  the  prior  act.  The  first  provision 
declares  that  the  defendant  may  set  up  in  his  answer  a  set-off. 
What  is  a  set-off?  The  code  does  not  define  it;  we  must  resort  to 
the  former  practice.  But  it  is  to  be  set  up  against  the  plaintiff,  be- 
cause it  is  in  an  answer  to  that  action.  The  set-off,  then,  must  be 
a  cause  of  action  existing  in  favor  of  the  defendant  against  the 
plaintiff,  and  founded  on  contract  or  ascertained  by  the  court. 
There  is  here  no  right  to  set  off  a  cause  of  action  in  favor  of  the 
defendant  against  a  third  person ;  it  is  only  by  virtue  of  section  26 
that  anything  of  this  kind  can  be  done.  The  claims  of  the  parties 
to  the  suit  must  be  mutual;  that  is,  the  plaintiff's  claim  must  be  one 
against  the   defendant,  and  the  defendant's  claim   must  be  one 


ANSWER.  •  227 


against  the  plaintiff.     The  code,  then,  in  regard  to  set-off,  is  sub- 
stantially the  same  as  the  act  of  1824  and  the  English  act  of  set-off. 

The  question  of  set-off,  so  far  as  non-negotiable  paper  is  con- 
cerned, did  not  exist  before  the  code ;  the  action  had  to  be  in  the 
name  of  the  original  party,  though  for  the  use  of  another,  and 
hence  any  claim  the  defendant  had,  capable  of  being  set  off  against 
the  plaintiff,  was  set  off  between  the  original  parties.  In  the  true 
sense  of  the  word,  there  was  no  set-off  allowed  on  non-negotiable 
instruments,  between  other  than  the  original  parties.  In  that  class 
of  cases,  then,  a  set-off  may  be  allowed  to  the  same  extent  as  if 
the  action  was  in  the  name  of  the  assignor  for  the  use  of  the 
assignee.  In  regard  to  negotiable  instruments,  the  law  is  left  just 
where  it  was  before ;  the  rule  in  the  first  half  of  the  section  is  to  be 
applied  to  negotiable  instruments  transferred  after  due.  If,  then, 
we  are  to  ascertain  the  law  of  set-off  in  this  respect,  we  must  resort 
to  the  decisions  of  courts  under  prior  acts.  On  this  ground  I  have 
cited  the  very  able  opinion  of  Eichardson,  C.  J.,  pretty  fully.  It 
states  the  prior  legislation  and  the  decisions  on  it,  which  are  just 
as  applicable  under  the  code  as  under  prior  legislation. 

"  In  the  case  of  Myers  v.  Davis,  22  N.  Y.  489,  this  subject  of  set- 
off came  under  consideration.  Denio,  J.,  used  the  following 
language  in  giving  the  opinion  of  the  court :  "  The  alteration  of  the 
practice,"  he  says,  "  allowing  the  beneficial  owner  of  a  chose  in  ac- 
tion, not  negotiable  at  law,  to  sue  thereon  in  his  own  name,  does  not 
change  the  actual  rights  of  the  parties  to  any  assignment  of  it. 
The  defendants  in  this  action  are,  therefore,  entitled  to  the  same 
defense  which  they  would  have  had,  if  the  former  rule  had  con- 
tinued to  prevail,  and  this  action  had  been  brought  in  the  name  of 
Watrous  &  Lawrence  and  to  no  other  or  different  defense.  The 
assignee  would  have  been  protected  in  his  equitable  rights,  not- 
withstanding the  non-negotiable  nature  of  the  contract,  to  the  same 
extent  he  is  entitled  to  have  been  protected  now  that  ho  can  pro- 
secute in  his  own  name.  The  change  effected  by  the  code  is 
simply  as  to  the  form  in  which  the  action  is  to  bo  carried  on. 

"An  assignee  of  a  chose  in  action  not  negotiable,  who  has  given 
notice  of  the  assignment,  is  not  liable  to  be  prejudiced  by  any  new 
dealings  between  the  original  parties  to  the  contract;  but  he  takes 
the  contract  assigned,  subject  to  all  the  rights  which  the  debtor  had 
acquired  prior  to  the  assignmenl  or  to  the  time  notice  of  it  was 
given,  where  there  is  an  interval  between  the  execution  of  the 
transfer  and  the  notice.  When  this  assignment  was  executed,  the 
defendants,   \>y  accepting  the  order  for  the  manufacture  of  tho 


228  ANSWER. 


utensils,  and  entering  upon  the  execution  of  the  work,  may  have 
reckoned  upon  paying  the  debt,  which  they  owed  to  Watrous  & 
Lawrence,  in  that  way.  If  they  had  completed  it  before  the  assign- 
ment, the  right  to  a  set-off  would  have  attached,  of  which  the  de- 
fendants would  not  been  deprived  by  any  act  of  Watrous  & 
Lawrence ;  but  unfortunately  for  the  defendants,  no  debt  had 
arisen  in  their  favor  when  Watrous  &  Lawrence  failed  and  made 
their  assignment;  and  when  a  debt  afterwards  came  into  existence 
by  the  completion  of  the  work,  the  demand  against  the  defendants 
had  become  the  property  of  the  plaintiff  as  a  trustee  for  the 
creditors  of  the  insolvent  debtors.  .  .  .  The  rule  is  that  when 
such  claims  exist  in  a  perfect  condition  at  the  same  time,  either 
party  may  insist  upon  a  set-off.  So  where  the  one  claiming  a  set- 
off has  a  demand  against  the  other,  presently  payable,  and  the 
other  party  is  insolvent,  the  former  may  claim  to  have  the  set-off 
made,  though  the  demand  of  his  adversary  against  him  has  not  be- 
come payable.  But  if,  before  the  demand  of  the  party  claiming  the 
set-off  become  mature,  the  opposite  claim  has  been  assigned, 
whether  the  assignment  carries  the  legal  or  only  an  equitable 
title,  the  right  to  set-off  no  longer  exists." 

The  doctrine  here  laid  down  is  fully  supported  by  all  the  author- 
ities. If  the  claim  sued  on  was  assigned  before  the  claim  of  the 
defendant  was  pa}Table,  then  the  set-off  could  not  be  made,  even 
when  the  suit  was  in  the  name  of  the  assignor.  A  replication  to 
a  plea  of  set-off  setting  forth  the  assignment  for  value,  and  that  the 
defendant  at  that  time  had  no  claim  due  and  payable  against  the 
assignor,  was  held  good.  A  bond  being  assigned  and  sued  upon 
in  the  name  of  the  obligee,  the  defendant  can  not  avail  himself  of 
the  indebtedness  of  the  obligee  created  since  the  assignment  of 
which  he  had,  at  the  time,  notice.  Newman  v.  Crocker,  1  Bay, 
246.  Under  the  statutes  of  set-off,  set-offs  are  confined  to  trans- 
actions between  the  parties  to  the  suit.  Holland  v.  Makepeace,  8 
Mass.  418 ;  Knapp  v.  Lee,  3  Pick.  452,  460.  Thus,  in  an  action 
against  the  drawer  of  a  check  by  an  assignee,  the  defendant  was 
not  allowed  to  set  off  a  negotiable  note  made  by  the  assignor  and 
payee  of  the  check,  which  had  been  indorsed  to  the  defendant  be- 
fore the  assignment.  Holland  v.  Makepeace,  8  Mass.  418.  The 
court  in  this  case  say :  "  When  it  is  said  that  the  assignment  of  a 
negotiable  security  overdue  shall  not  deprive  a  defendant  of  any 
considerations,  which  might  have  been  favorable  to  him,  if  the  ac- 
tion had  been  brought  by  the  original  holder,  it  is  meant  that  such 
facts,  as  would  show  that  the  security,  at  the  time  of  the  assign- 


ANSWER.  229 

ment,  had  become  invalid  in  the  hands  of  the  original  holder, 
should  equally  avail  the  defendant  against  the  assignee.  But  it 
never  could  have  been  intended  by  the  statute,  that  an  assignee 
should  be  bound  to  contest  a  demand,  made  by  the  defendant 
against  his  assignor,  on  a  negotiable  security,  which  the  defendant 
might  have  purchased.  This  might,  in  many  instances,  enable  a 
defendant,  by  collusion  with  the  assignor,  to  defeat  the  effect  of  an 
assignment;  because  the  assignee,  being  a  stranger  to  the  transac- 
tion relied  upon  in  the  defense,  could  have  no  means  of  protecting 
himself."  This  reasoning  supports  the  view  of  the  decision  in  New 
Hampshire  already  cited.  So  where  A  carried  on  business  in  the 
name  of  B,  and  in  his  name  sold  and  delivered  goods  to  C,  and 
afterward  brought  an  action  in  B's  name  against  C  for  the  price,  it 
was  held  that  the  action  was  rightly  brought  in  the  name  of  B, 
and  that  a  claim  against  A  could  not  be  set  off.  Alsop  v.  Caines, 
10  Johns.  396.  The  reason  of  this  decision  is  plainly  this :  B  was 
liable  for  the  debts  of  the  business,  and,  therefore,  entitled  to  the 
debts  due  to  the  business,  and  that  A  had  no  interest  save  in  the 
surplus  after  all  debts  were  paid.  So  a  note  given  after  notice  of  an 
assignment,  though  for  a  pre-existing  liability,  can  not  be  set  off. 
Weeks  v.  Hunt,  6  Vt.  15.  Where  a  note,  not  negotiable,  has  been 
assigned  to  a  third  person  for  a  valuable  consideration,  and  the 
maker  has  promised  the  assignee  to  pay  him  the  amount  of  the 
note,  the  maker  can  not,  in  an  action  against  him  upon  the  note  in 
the  name  of  the  payee,  set  off  claims  he  may  have  against  the 
payee.  Wiggin  v.  Damrell,  4  N.  H.  69  ;  Gould  v.  Chase,  16  Johns. 
226.  The  assignee  of  a  note  can  not  file  the  same  in  set-off  against 
the  maker,  unless  the  assignment  was  made  before  suit  brought  on 
the  debt  of  the  maker  against  the  assignee.  Gross  v.  Van  Wick, 
Minor,  7.  So  in  an  action  by  the  indorsee  against  the  drawer  of  a 
promissory  note  payable  at  a  particular  bank  without  defalcation 
or  discount,  the  defendant  can  not  set  off  a  demand  he  may  have 
against  the  bank  which  discounted  the  note  and  transferred  it  to 
the  plaintiff.  Tillon  v.  Britton,  4  Halst.  120.  Vide  also  Stewart 
v.  Anderson,  6  Cranch,  203 ;  Stocking  v.  Toulmin,  3  Stew.  &  Porter, 
35.  A  note  purchased  for  the  avowed  purpose  of  set-off  after  suit 
commenced,  is  not  admissible  as  a  set-off.  Carpenter  v.  Butterfield, 
3  Johns.  Oas.  145.  Where  a  note  overdue  is  transferred,  the  maker 
can  not  set  off  a  demand  against  the  payee,  if,  at  the  time  of  trans- 
fer,the  payee  has  demands  againsl  the  maker  greater  than  the  set- 
off. Collins  o.  Allen,  L2  Wend.  :;."><; ;  Driggs  v.  Eockwell,  11  Wend. 
50  1.     Where  mutual  demands  exist  between  parties,  one  of  them 


230  ANSWER. 


can  not,  by  an  assignment  of  his  cause  of  action,  defeat  the  right 
of  the  other  to  set  off  the  judgments  rendered.  Hooper  v.  Brun- 
dage,  22  Maine,  460.  The  claim  in  this  case  was  assigned,  while 
the  suits  were  pending.  The  payee  of  a  note  indorsed  it  and  de- 
livered it  as  a  collateral  security  to  certain  of  his  creditors,  who 
caused  a  suit  to  be  brought  thereon  in  the  name  of  a  nominal 
plaintiff,  after  which  the  payee  settled  the  demand  for  which  the 
note  was  given  as  security ;  and  it  was  held  that  after  such  settle- 
ment the  defendant  in  such  action  might  set  off  a  note  from  the 
payee  to  himself.  Bellows  v.  Smith,  9  N.  H.  285.  It  is  a  good 
replication  to  a  plea  of  set-off  of  a  judgment  recovered,  that  the 
whole  judgment  has  been  assigned  to  a  third  person  of  which  no- 
tice had  been  given  to  the  judgment  debtor.  Day  v.  Abbot,  15 
Vt.  632.  When  the  first  indorsee  of  a  promissory  note  negotiates 
it  after  due,  and  the  second  indorsee  brings  an  action  thereon  against 
the  maker  or  first  indorser,  the  defendant  can  not  set  off  any  claim 
which  he  has  against  the  first  indorsee,  except  such  as  existed  at 
the  time  of  the  transfer  of  the  note  to  the  plaintiff,  although  he 
had  no  notice  of  such  transfer  when  he  acquired  the  claim  against 
the  first  indorsee.  Baxter  v.  Little  &  Harris,  6  Met.  7.  In  Baxter 
v.  Little  &  Harris,  6  Metcalf,  7,  10,  Shaw,  C.  J.,  states  the  law  of 
set-off  in  regard  to  negotiable  instruments  as  well  as  non-negotia- 
ble ones,  and  discriminates  between  the  two  :  "  When  a  negotiable 
note  is  indorsed,"  he  says,  "  and  transferred  after  it  is  due,  and 
the  defendant  relies  upon  matter  of  set-off,  which  he  may  have 
against  the  promisee,  he  can  avail  himself  only  of  such  matter  of 
defense  as  existed  between  himself  and  the  promisee  at  the  time  of 
the  actual  indorsement  and  transfer  of  the  note  to  the  holder.  A 
note  does  not  cease  to  be  negotiable,  because  it  is  overdue.  The 
promisee,  by  his  indorsement,  may  still  give  a  good  title  to  the  in- 
dorsee. Notes  or  other  matters  of  set-off,  acquired  by  the  defend- 
ant against  the  promisee,  after  such  transfer,  can  not  be  given  in 
evidence  in  defense  to  such  note,  although  the  maker  had  no  notice 
of  such  transfer,  at  the  time  of  acquiring  his  demand  against  the 
promisee.  Having  made  his  promise  negotiable,  he  is  liable  to  any 
bona  fide  holder  and  actual  indorsee;  and,  therefore,  even  after  the 
note  has  become  due  in  making  payments  to  the  original  promisee, 
or  in  further  dealings  by  which  he  gives  him  a  credit,  he  has  no 
right  to  presume,  without  proof,  that  the  promisee  is  still  the  holder 
of  the  note.  Besides,  in  case  of  payment  of  a  negotiable  note,  or 
of  a  credit,  which  the  maker  intends  shall  operate  by  way  of  pay- 
ment, he  has  a  right  to  have  the  note  given  up,  if  paid  in  full,  or 


ANSWER.  231 

to  see  the  payment  indorsed,  if  partial.  If  he  insists  on  this  right, 
in  the  case  proposed,  he  would  at  once  perceive  that  the  person  to 
whom  he  was  making  payments,  or  giving  credit,  is  no  longer  the 
holder  of  the  note.  And  this  appears  to  us  to  be  the  true  distinc- 
tion between  the  indorsement  of  a  note  overdue,  and  the  assign- 
ment of  a  chose  in  action.  In  the  latter  case,  notice  of  the  assign- 
ment must  be  given  by  the  assignee  to  the  debtor,  to  prevent  him 
from  making  payments  to  the  assignor.  Without  such  notice,  he 
has  no  reason  to  presume  that  the  original  creditor  is  not  still  his 
creditor,  and  payment  to  him  is  according  to  his  contract,  and  in 
the  due  and  ordinary  course  of  business.  The  assignee  takes  an 
equitable  interest  only,  which  must  be  enforced  in  the  name  of  the 
assignor ;  and,  until  notice,  he  has  no  equity  against  the  debtor, 
which  can  be  recognized  and  protected  by  a  court  of  law  or  equity. 
The  indorsee  of  a  note  overdue  takes  a  legal  title;  but  he  takes  it 
with  notice  on  its  face  that  it  is  discredited,  and,  therefore,  subject 
to  all  payments  and  offsets  in  the  nature  of  payments.  The  ground 
is  that  by  this  fact  he  is  put  upon  inquiry,  and,  therefore,  he  shall 
be  bound  by  all  existing  facts,  of  which  inquiry  and  true  informa- 
tion would  apprise  him ;  but  these  could  only  apprise  him  of  de- 
mands then  acquired  by  the  maker  against  the  payee." 

The  court  also  allude  to  the  case  of  Sargent  v.  Southgate,  5  Pick. 
312,  and  say  the  case  does  not  warrant  the  marginal  note  that  all 
claims  acquired  before  notice  of  the  transfer  could  be  set  off.  "  No 
such  decision,"  says  the  judge,  "  was  called  for  in  that  case,  because 
all  the  demands  relied  upon  by  way  of  set-off  were  acquired  by 
the  defendant,  whilst  the  original  payee  was  the  holder  of  the  note. 
But  further,  on  a  careful  examination  of  the  opinions,  we  think  it 
will  not  be  found  that  there  is  any  such  dictum  in  regard  to  notice." 
The  judge  further  says  that  "the  English  rule,  in  allowing  set-off 
in  an  action  upon  a  note,  is  somewhat  more  limited  than  our  own, 
confining  such  defense  to  equities  arising  out  of  the  same  note,  or 
transactions  connected  with  it.  Burrough  v.  Moss,  10  B.  &  Cress. 
558.  This  English  case  is  in  accordance  with  the  case  of  Chandler 
v.  Drew,  G  N.  H.  469,  and  in  my  opinion  is  the  better  law.  The 
phrase  that  the  indorsee  of  a  note  or  bill  overdue  takes  it  subject 
to  equities,  is  derived  from  a  court  of  equity,  andin  that  court  its 
application  is  limited  to  equities  growing  out  of  the  case  set  up  in 
the  petition,  and  has  no  reference  to  any  other  dealings  or  contracts 
between  the  parties,  ii  wonld  seem,  therefore,  that  the  rule  thus 
borrowed  from  a  court  of  equity  should  have  the  same  meaning 
and  application  in  the  one  court  as  the  other.     Vide  also  Ilegor- 


232  ANSWER. 


man  r.  Hyslop,  Anthon,  197  ;  Spencer  v.  Barber,  5  Hill,  568 ;  Graves 
r.  Woodbury,  4  Hill,  559;  Mead  v.  Gillet,  19  Wend.  397;  Chilton 
v.  Comstock,  4  Ala.  58 ;  Northern  Bank  v.  Kyle,  7  How.  (Miss.)  360 ; 
Ward  v.  Martin,  3  Mon.  18;  Johnson  v.  Pearson,  7  Dana,  374; 
Wells  v.  Tcall,  5  Blackf.  306  ;  Hurd  v.  Earl,  4  Blackf.  184.  The  case 
of  Call  v.  Chapman,  25  Maine,  128,  sustains  the  decision  in  the  case 
of  Chandler  v.  Drew,  6  N.  H.  469,  in  holding  that,  as  against  the 
indorsee  of  a  negotiable  note,  the  defendant  could  not  set  off  the 
negotiable  note  of  the  payee,  though  acquired  before  the  transfer. 
If  a  surety  for  a  debt  pay  the  same  before  due,  the  payment  will, 
after  the  debt  has  become  due,  but  not  before,  be  a  legal  set-off 
against  his  note  payable  to  the  principal  and  held  by  him.  Jack- 
son v.  Adamson,  7  Blackf.  597. 

In  equity  the  rule  is  somewhat  different  from  what  it  is  at  law. 
The  ground  of  its  interference  is,  that  from  the  insolvency  of  some 
of  the  parties,  others  will  lose  if  they  are  compelled  to  pay  the 
insolvent  party,  and  be  driven  to  an  action  against  the  insolvent 
for  his  claim.  An  equitable  set-off  may  be  obtained  in  equity  by 
cross-bill,  when  the  complainant  in  the  original  bill  is  insolvent,  so 
that  the  defendant  will  lose  his  debt  unless  the  set-off  is  obtained. 
Knapp  v.  Burnham,  11  Paige,  330.  A  demand  other  than  a  judg- 
ment can  not  be  set  off  at  law  or  in  equity  unless  owned  by  the 
defendant  at  the  time  when  the  suit  was  commenced.  lb.  The 
right  to  a  set-off,  upon  summary  application  to  a  court  of  law  or 
equity,  exists  only  in  cases  where  the  debts  on  both  sides  are  liqui- 
dated by  judgment  or  decree  before  the  assignment  of  either  to  a 
third  person.  Barber  v.  Spencer,  11  Paige,  517.  The  right  of 
set-off  in  chancery  exists  independent  of  the  statute  of  set-off,  and 
is  not  subject  to  them.  Jeffries  v.  Evans,  6  B.  Mon.  119.  The  law 
is  thus  stated  by  Walworth,  Ch.,  in  Lindsay  v.  Jackson,  2  Paige, 
581,  582.  "But  the  court  of  chancery,  says  the  chancellor,  even 
before  the  statute,  recognized  the  principle  of  natural  equity,  and 
acted  upon  it  in  cases  where  the  law  could  not  give  a  remedy  in  a 
separate  action  in  consequence  of  the  insolvency  of  one  of  the  par- 
ties. Thus,  in  Hawkins  v.  Freeman,  2  Eq.  Cas.  Abr.  10,  which 
was  decided  by  Lord  Macclesfield  five  years  before  the  statute  of 
set-off  was  passed,  the  court  of  chancery  interfered  to  enforce  this 
natural  equity,  as  between  the  administrator  of  an  insolvent  estate 
and  the  complainant,  between  which  complainant  and  the  intestate 
there  were  mutual  demands.  The  same  principle  of  natural  equity 
was  recognized  by  Lord  Chief  Justice  Hale  many  years  before. 
See  Chapman  v.  Derby,  2  Vern.  117.    And  at  this  day,  if  the  court 


ANSWER.  233 

finds  a  case  of  natural  equity  not  within  the  statute,  it  will  permit 
an  equitable  set-off,  if,  from  the  nature  of  the  claim,  or  from  the 
situation  of  the  parties,  it  is  impossible  to  obtain  justice  by  a  cross- 
action.     See  Piggott  v.  Williams,  Mad.  &  Geld.  95." 

Where  there  are  mutual  demands  between  the  parties,  which  can 
not  be  set  off  under  the  statute,  but  which  a  court  of  equity  may 
compensate  or  apply  in  satisfaction  of  each  other  without  interfer- 
ing with  the  equitable  rights  of  any  person,  the  fact  that  one  of 
the  parties  is  insolvent  has  frequently  been  held  a  sufficient  ground 
for  the  exercise  of  the  equitable  jurisdiction  of  the  court  of  chan- 
cery. Vide  Lord  Lanesborough  v.  Jones,  2  P.  Wms.  325.  In  Pond 
v.  Smith,  4  Conn.  302,  the  Supreme  Court  of  Connecticut  held  that 
the  insolvency  of  one  of  the  parties  was  a  sufficient  ground  for  the 
interference  of  a  court  of  chancery  to  offset  mere  legal  demands 
against  each  other,  although  they  were  so  situated  as  to  be  incapa- 
ble of  being  set  off  at  law ;  and  that  the  complainant  ought  not  to 
be  left  to  pursue  his  legal  remedy  against  the  defendants  when, 
from  their  insolvency,  no  satisfaction  of  his  demand  could  be  thus 
obtained.  The  same  doctrine  is  maintained  in  the  case  of  Sear- 
chet  v.  Adm'r  of  Searchet,  2  Hammond  (O.),  320.  In  this  case  it 
was  held  that  where,  upon  the  adjustment  of  a  partnership,  two 
parties  are  in  equity  creditors  of  a  third  partner,  such  credits  in 
chancery  might  be  set  off  against  a  joint  debt  due  from  the  same 
two  partners  to  the  third,  although  from  the  unliquidated  nature 
of  their  claims  it  could  not  be  done  at  law.  Vide  also  Collins  v. 
Farquar,  1  Littell,  153;  Bobbins  v.  Hawley,  1  Mon.  194;  Prior  v. 
Ptichards'  Adm'r,  4  Bibb,  356 ;  Bull  v.  Townsend,  Littell  Select 
Cases,  325.  Gardner,  J.,  in  Bradley  v.  Angel,  3  Comst.  475,  477, 
says  :  "But  it  has  been  held  in  this  State  that  A  having  a  demand 
against  B,  which  is  due,  and  B  one  against  A  not  due,  A  may  in 
equity  compel  a  set-off  if  B  be  insolvent."  The  case  in  2  Paige, 
581,  had  held  the  contrary. 

These  cases  sufficiently  show  in  what  cases  equity  will  interfere; 
it  is  where,  if  the  law  ran  its  course,  one  party  being  solvent  would 
have  to  pay  a  debt  to  another  who  was  insolvent,  while  he  had  a 
claim  against  him  which  for  some  reason  could  not  be  setoff  at 
law.  One  debt  might  grow  out  of  an  unsettled  partnership,  or 
from  some  other  equity,  or  it  might  be  in  favor  of  two,  but  one  had 
\<>  pay  it.  There  can  not  be  a  set-off  at  law  of  a  deht  due  two  in  a 
suit  againsl  one  by  the  debtor,  though  in  equity  the  one  sued  owns 
the  whole  claim. 

In  the  case  of  Straus  v.  Eaglo  Ins.  Co.,  5  Ohio  St.  59,  our  Su- 


234  ANSWER. 


preme  Court  laid  down  this  rule  :  that  a  Set-off  can  only  bo  allowed 
for  such  claims  as  in  good  faith  and  absolutely  belonged  to  the 
party  at  the  commencement  of  the  action,  and  does  not  extend  to 
claims  purchased  conditionally  for  the  purpose  of  using  them  as  a 
set-off,  and  with  an  agreement  to  return  them  to  the  seller  if  they 
arc  not  so  used.  The  statute  was  designed  to  avoid  circuity  of 
action,  by  enabling  the  defendant  to  obtain  the  benefit  of  his  own 
joint  claims  against  the  plaintiffs ;  but  it  would  be  a  fraud  to  allow 
him,  in  anticipation  of  a  lawsuit,  to  get  the  use  merely  of  the  claims 
of  others,  with  which  to  defeat  his  adversary.  Per  Eanney,  J., 
lb.  66. 

In  the  case  of  Follet,  Adm'r  v.  Buyer,  4  Ohio  St.  586,  591,  Thur- 
man,  C.  J.,  says  :  "  But  it  is  a  mistake  to  suppose  that  it  was  the 
design  of  the  statute  to  create  an  unlimited  right  of  set-off,  as 
against  an  assignee ;  or,  in  other  words,  to  allow  every  set-off 
against  him  that  would  be  available  against  the  payee,  had  the 
note  never  been  transferred.  When  an  overdue  or  non-negotiable 
note  is  assigned,  the  assignee  takes  it  subject  to  all  the  equities 
existing  between  the  payee  and  the  maker ;  and  hence  it  is  compe- 
tent for  the  latter,  notwithstanding  the  assignment,  to  show  that  it 
was  obtained  by  fraud,  or  without  consideration,  or  that  before  he 
received  notice  of  the  assignment,  it  had  been  paid  or  otherwise 
discharged.  So,  too,  he  may  set  off  any  liquidated  demand  which 
he  held  against  the  payee  when  he  first  obtained  information  of 
the  assignment,  but  not  claims  subsequently  acquired,  even  though 
they  had  their  origin  in  previous  transactions. 

"  The  general  principle  that,  as  against  a  bona  fide  assignee,  there 
can  be  no  set-off  of  demands  upon  the  assignor  acquired  after 
notice  of  the  assignment,  and  that  a  court  of  law  is  fully  competent 
to  protect  the  assignee,  is  certainly  well  established.  Pancoast  v. 
Euffin,  1  Ohio,  381 ;  Weakly  v.  Hall,  13  Ohio,  174. 

"  That  a  mere  contingent  liability,  not  even  reduced  into  judg- 
ment, as  surety  for  the  assignor,  is  not  a  demand  upon  him, 
would  seem  to  be  sufficiently  obvious ;  and  where  nothing  more 
exists  at  the  date  of  the  assignment,  and  the  assignor  is  solvent,  a 
subsequent  payment  of  the  surety,  in  discharge  of  such  liability, 
will  not  give  him  a  right  of  set-off  as  against  the  assignee. 
Granger's  Adm'r  v.  Granger,  6  Ohio,  35.  Our  judgment  resolves 
the  question  against  the  intestate  at  his  death.  A  liability  only 
was  incurred,  upon  which,  on  the  contingency  of  the  security  being 
compelled  to  pay  for  the  intestate,  he  would  have  a  right  of  action 
for  his  indemnity.     A  bare  possibility  that,  in  a  certain  future  con- 


ANSWER.  235 

tingent  event,  he  would  have  a  demand,  is  not  a  deht  due  from  the 
intestate,  and  such  a  claim  has  not  the  mutuality  required  for  a  set- 
off." The  case  was  one  of  an  equitable  assignment,  and  not  a  case 
of  the  legal  transfer  of  a  negotiable  note  or  bill. 

In  the  case  of  Stanbery  v.  Smyth,  13  Ohio  St.  495,  the  court  held 
that  the  defendant  could  not  set-o  ff  a  part  of  a  claim  assigned  to 
him,  it  would  allow  the  splitting  up  of  claims,  which  is  never  done. 
In  Miller  v.  Florer  15  Ohio  St.  148,  the  court  held  that  under  the 
code  the  right  of  set-off  exists  against  the  persons  who  are  the 
equitable  owners  of  the  demand  in  suit. 

Where  a  note  having  been  transferred,  when  past  due,  to  one  who 
was  to  use  the  avails,  in  his  discretion,  for  the  benefit  of  the  payee's 
family,  the  maker  can  not  set  up  by  way  of  set-off  that  the  payee 
was  at  the  time  of  the  transfer,  indebted  to  him  for  advances  made 
to  a  firm  of  which  they  and  a  third  person,  not  a  party  to  the  suit, 
were  partners,  of  which  no  account  had  been  stated,  though  the 
payee  die  insolvent  subsequent  to  the  transfer.  Conceding  that 
there  is  now  no  objection  to  setting  off  against  a  legal  demand,  a 
claim  arising  out  of  contract,  which  can  only  be  liquidated  in 
equity,  the  set-off  is  inadmissible  for  the  want  of  a  party — the 
third  partner — who  would  be  essential  to  a  suit  for  the  establish- 
ment of  the  claim.  Cumings  v.  Morris,  25  N.  Y.  525.  In  this  case 
the  court  seems  to  hold  that  an  unsettled  partnership  account  can 
not  be  made  the  subject  of  a  set-off,  since  there  is  no  debt  due  from 
one  partner  to  another.  "  It  is  clear,"  says  Wright  J.,  "  that  the 
unadjusted  partnership  claim  could  not  be  set  off  at  law.  It  was 
not  a  claim,  which  existed  and  was  due  and  payable,  and  belonged 
to  the  defendant  before  the  notes  were  transferred,  nor  was  it  a  de- 
mand against  Sargeant  alone,  but  against  him  and  the  partner 
Allen  jointly.  It  was  not  liquidated,  nor  could  it  be  without  a 
statement  and  settlement  of  the  partnership  accounts.  There  was 
no  account  stated  between  the  defendant  and  Sargent,  nor  were 
the  affairs  of  the  partnership  settled  in  anyway.  At  the  time  such 
partnership  closed,  if  it  did  so  on  the  completion  of  the  Flushing 
railroad,  the  notes  had  been  transferred  over  three  months.  And 
until  the  affairs  of  the  partnership  are  closed  and  settled,  it  can 
not  be  said  that  any  debt  exists  from  either  partner  to  the  other." 
Beckwith  v.  Union  Bank,  5  Seld.  211;  Beebo  v.  Bull,  12  Wend. 
504  :   Plete  v.  Johnson,  3  Hill,  112;  Ladue  v.  Hart,  4  Wend.  583. 

In  the  ease  of  Smith  r.  Felton,  43  N".  Y.  419,  the  right  of  Bet-off 
in  equity  is  somewhal  discussed  and  the  law  stated.  It  was  held 
that  in  equity  the  amount  of  a  partnership  deposit  with  an  insolv- 


236  ANSWER. 


ont  banker  was  a  proper  subject  of  sot-off  in  an  action  brought 
by  the  assignee  in  trust  for  creditors  of  such  banker,  on  a  note 
held  by  the  banker,  made  by  one  of  the  partners,  and  indorsed  by 
the  other  for  pai'tnership  purposes,  although  such  note  was  not  due 
at  the  time  of  the  assignment.  The  court  say :  "  The  form  of  the  de- 
fendant's obligation  and  that  at  law  they  were  severally  and  not 
jointly  liable,  is  not  material.  They  were  both  liable  upon  the  same 
instrument  for  a  firm  debt ;  and  equity  will  look  through  the  form 
of  the  transaction,  and  adjust  the  equities  of  the  parties,  with  a 
view  to  its  substance,  rather  than  its  form,  so  long  as  no  superior 
equities  of  third  persons  will  be  affected  by  such  adjustment." 

The  debt  to  be  set  off  must  be  mutual,  must  be  between  the  par- 
ties to  the  suit,  save  in  cases  of  assignment ;  hence,  if  two  are 
sued,  a  debt  in  favor  of  one  can  not  be  set  off;  or  if  one  is  sued,  a 
debt  in  his  favor  and  another  can  not  be  set  up  as  an  offset  by  the 
one  sued  against  the  plaintiff. 

In  an  action  proper  for  a  set-off  against  several  defendants,  sever- 
ally or  jointly  and  severally  liable,  any  one  of  them  may  avail 
himself  of  his  set-off;  or  any  number  of  the  defendants,  to  whom 
the  set-off  is  jointly  due,  may  avail  themselves  of  such  set-off. 
Parsons  v.  Nash,  8  How,  454;  Briggs  v.  Briggs,  20  Barb.  477; 
15  IS".  Y.  471 ;  but  if  they  are  jointly  liable,  one  of  them  can 
not  avail  himself  of  a  demand  on  contract  in  his  favor  individu- 
ally against  the  plaintiff.  Peabody  v.  Bloomer,  3  Abb.  353 ;  S.  C, 
5  Duer,  678  ;  6  lb.  53  ;  Mott  v.  Burnett,  2  E.  D.  Smith,  50. 

In  the  case  of  West  v.  Meddock,  16  Ohio  St.  417,  the  court  held 
that  the  plaintiff  could  not  in  a  reply  set  up  by  way  of  a  set-off, 
that  the  defendant  was  indebted  to  him  in  dealings  distinct  from 
those  set  up  in  petition  and  answer. 

Can  an  unliquidated  claim  founded  on  contract  be  plead  by  way 
of  set-off?  Prior  to  the  code,  none  but  what  was  called  a  liqui- 
dated claim  could  be  plead  as  a  set-off.  The  old  statute  named  cer- 
tain kinds  of  claims  and  other  liquidated  claims.  Under  this  lan- 
guage, it  was  always  held  that  the  claims  of  the  character  named 
must  be  liquidated  ;  it  was  not  every  cause  of  action  founded  on 
contract  that  could  be  available  as  a  set-off ;  it  must  still  be  what 
is  called  a  liquidated  claim.  The  code  is  brief  on  the  subject  of 
set-off;  says  it  must  be  a  cause  of  action  arising  on  contract,  or 
ascertained  by  the  decision  of  the  court.  These  last  words  are 
equivalent  to  the  word  "  unliquidated  "  in  the  prior  act.  It  would 
be  strange  if  one  action  of  covenant  broken  could  be  met  by  an- 
other action  of  the  same  kind ;  so  that  the  jury  would  have  to  try 


ANSWER.  237 

two  actions,  having  no  connection  with  each  other,  and  both  sound 
ing  in  damages.  I  can  find  no  case  looking  to  this  question,  save 
the  case  of  Cummings  v.  Morris,  25  K  Y.  625.  Wright,  J.,  in  his 
opinion,  says  the  claim  is  not  liquidated,  which  clearly  implies  that 
is  essential  to  the  demand  to  be  set  off.  The  counter-claim  admits 
a  cross-action  for  damages,  but  such  cross-action  is  limited  to  the 
transaction  or  contract  out  of  which  the  plaintiff's  claim  arose. 
This  necessarily  implies  that  such  claims  can  not  generally  be  set- 
off. 

CROSS-PETITION. 

The  act  of  April  8,  1857,  has  added  the  following  to  section  84, 
54  Ohio  L.  91  : 

"  Any  defendant,  who  is  properly  made  a  defendant,  may  claim, 
in  his  answer,  relief  touching  the  matters  in  question  in  the  peti- 
tion against  the  plaintiff  or  against  other  defendants  in  the  same 
action." 

This  is  a  new  provision  introduced  into  the  code,  and  needs  a 
careful  consideration.  We  will  examine  its  various  terms  in  their 
order : 

1.  The  person  authorized  to  ask  in  his  answer  for  relief  must 
be  a  defendant  and  a  rightful  defendant  in  the  action.  He  must  ap- 
pear to  be  a  necessary  party  to  the  case  made  by  the  plaintiff;  if 
he  is  not  such  a  defendant,  he  can  ask  for  no  relief  against  any 
one ;  although  he  may  have  some  claim  against  a  co-defendant^ 
yet  he  can  ask  for  no  relief  against  him,  unless  he  himself  is  a 
necessary  defendant  to  the  case  made  by  the  plaintiff  in  his  peti- 
tion. He  is  not  properly  made  a  defendant,  unless  such  is  the 
case. 

2.  The  relief  asked  must  relate  to  the  matters  stated  in  the  peti- 
tion ;  relief  touching  the  matters  in  question  in  the  petition.  The  re- 
lief asked  then  must  grow  out  of  the  case  made  by  the  plaintiff  in 
his  petition  ;  the  defendant  can  not  set  up  a  new  claim,  and  ask  for 
relief  on  that ;  his  right  to  relief  must  depend  upon  the  case  stated 
in  the  petition,  and  not  upon  a  case  to  be  stated  by  himself.  A 
few  examples  will  make  the  meaning  of  this  clause  more  clear, 
bo  clear  that  it  may  not  be  misunderstood.  A  vendee  of  real 
estate  files  a  petition  to  set  aside  the  contract ;  the  vendor  will 
now  be  permittted  not  only  to  deny  the  right  to  a  rescission  of  the 
contract;  but  he  may  go  on  in  his  answer  and  aver  performance 
on  liis  part,  and  ask  that  the  plaintiff  (the  vendee)  be  required  to 
execute  said  contract  of  sale.  So,  too,  if  the  vendor  applies  for  a 
specific  performance,  the  vendee  may  set  up  facts,  and  ask  for  a 


238  ANSWER. 


rescission  of  the  contract.  In  all  cases  where  a  plaintiff  asks  for 
the  execution  of  an  agreement,  the  defendant  may  not  only  show 
thai  the  plaintiff  has  no  right  to  an  execution  of  it,  but  he  may 
also  set  up  such  facts  as  entitle  him  to  a  vacation  of  the  contract, 
and  pray  that  the  same  may  he  done.  Under  the  practice  in 
chancery,  the  defendant  in  such  cases  could  only  defeat  the 
plaintiff's  claim;  he  had  himself  to  bring  a  suit,  if  he  wished  to 
have  the  contract  set  aside ;  but  under  this  provision,  the  defend- 
ant can  o'btain  all  the  relief  he  would  have  been  entitled  to  in  a 
separate  action.  So,  if  a  party  to  a  note  files  a  petition  to  set  it 
aside,  the  defendant  may  not  only  deny  his  right  to  have  it  de- 
clared void,  or  rescinded;  he  may  also  claim  a  judgment  against 
the  plaintiff  for  the  amount  due  him  on  the  note. 

As  to- judgments  by  one  defendant  against  another.  This  can 
seldom  occur,  though  cases  do  occur,  where  under  this  provision, 
such  a  judgment  might  be  rendei-ed.  If  an  assignee  of  a  real  con- 
tract files  a  petition  against  vendor  and  assignor  and  vendee,  and 
the  vendee  and  assignor  was  to  deny  the  assignment,  or  the  right 
of  the  assignee  to  a  conveyance  as  against  him,  he  might,  also  ask 
that  his  co-defendant  (the  vendor)  might  be  decreed  to  convey  the 
land  to  himself.  So  where  an  assignee  of  a  judgment  files  a  peti- 
tion against  the  defendant  and  plaintiff  in  the  judgment,  the 
plaintiff  in  the  judgment,  if  he  denied  the  right  of  the  assignee, 
might  ask  for  the  benefit  of  the  action  as  against  his  co-defendant, 
as  though  he  had  himself  filed  the  petition.  In  cases,  where  the 
amount  due  on  a  non-negotiable  note  has  been  assigned  to  two 
persons,  and  one  of  them  files  a  petition  against  the  maker  and 
his  co-assignee,  the  assignee  may  ask  for  a  judgment  against  his 
co-defendant,  the  maker  of  the  note,  for  the  amount  coming  to 
him.  Certain  parties  executed  their  non-negotiable  note  to  a 
bank  ;  the  bank,  afterward,  assigned  one-half  the  money  due  on 
the  note  to  one,  and  the  other  half  to  another.  The  charter  of 
the  bank  then  expired.  A  bill  was  then  filed  by  one  of  the  as- 
signees against  the  makers  of  the  note  and  the  other  assignee, 
praying  for  a  judgment  against  the  makers  for  the  sum  due  him ; 
the  other  assignee  set  up  in  an  answer  his  interest  and  asked  for  a 
judgment  against  his  co-defendants,  the  makers,  for  the  sum  due 
him  on  the  note;  and,  in  Kentucky,  it  was  held  that  such  judg- 
ment could  be  rendered.  In  that  State,  this  provision  has  long 
constituted  a  part  of  the  chancery  law. 

In  all  these  cases,  it  will  be  seen  that  the  relief  grows  out  of  the 
case  made  by  the  plaintiff,  and  not  out  of  any  case  set  up  by  the 


ANSWER.  239 

defendant.  In  these  cases,  if  the  plaintiff  is  not  entitled  to  what 
he  demands,  the  defendant  is,  on  the  same  case,  entitled  to  some 
kind  of  relief;  under  the  old  practice,  he  was  compelled  to  bring 
a  new  action  to  obtain  it ;  now  he  can  set  up  his  claim  to  relief  in 
his  answer,  and  if  he  succeeds  in  defeating  the  plaintiffs  case,  he 
becomes  entitled  to  the  same  relief  he  would  have  been,  if  he  had 
gone  into  court  on  the  same  transaction.  In  the  case  of  co- 
defendants,  the  case  made  by  the  plaintiff  must  show  that  one  of  the 
defendants  has  certain  rights  to  relief  against  another  defendant, 
growing  out  of  the  same  contract  or  transaction,  set  up  by  the 
plaintiff,  as  the  facts  constituting  his  right  of  recovery ;  as  where 
one  cestui  que  trust  files  a  petition  against  the  trustee  and  other 
cestui  que  trust  calling  for  an  account  of  the  trust;  all  the  cestuisque 
trusts  may  have  judgments  against  the  trustee  for  the  respective 
amounts  coming  to  each,  just  as  though  all  were  plaintiffs. 

This  provision  can  only  apply  to  actions  founded  upon  rights 
heretofore  the  subject  of  chancery  jurisdiction.  In  actions  at  com- 
mon law,  a  failure  of  the  plaintiff  to  recover  extinguishes  not  only 
all  the  rights  of  the  plaintiff  against  the  defendant,  but  of  the  de- 
fendant against  the  plaintiff,  growing  out  of  the  case  made  by  the 
plaintiff.  A  failure  to  recover  on  a  note,  or  other  contract,  ex- 
tinguishes those  contracts  as  much  as  though  they  were  set  aside 
in  equity  ;  but  in  the  cases  put,  a  failure  of  the  plaintiff  to  recover 
on  the  case  made  by  himself,  leaves  in  the  defendant  a  right  to  re- 
lief against  the  plaintiff  on  the  same  transaction.  This  state  of 
things  can  hardly  arise  except  in  a  case  founded  upon  principles 
of  equity. 

This  provision  was  probably  introduced  in  consequence  of  the 
decision  in  the  case  of  Klonne  and  wife  v.  Bradstead  et  al.,  7  Ohio  St. 
322.  That  decision  was  open  to  great  doubt  as  to  its  correctness, 
and  this  provision  was  inserted  to  settle  that  doubt.  This  pro- 
vision is  equivalent  to  the  cross-bill  in  the  old  chancery  practice, 
and  this  act  makes  the  answer  equivalent  to  a  cross-petition,  if  it 
states  such  facts  as  a  cross-petition  would  have  contained,  and  a 
prayer  is  added  for  the  particular  relief  which  the  party  wishes  to 
obtain,  and  the  name  of  the  person  from  whom  the  relief  is  de- 
manded. If  we  resort  to  tho  law  in  equity  regulating  cross- 
petitions,  it  will  aid  us  in  understanding  this  addition  to  the  code. 

As  a  defendant  can  not  pray  anything  in  his  answer,  except  to 
be  dismissed  tin'  court  ;  if  he  has  any  relief  to  pray,  or  discovery 
to  seclc.  he  tn ust  do  so  by  a  bill  of  his  own,  which  is  called  a  cross- 
bill.   Lube's  Bq.  PI.  o'J.     A  cross-bill  is  a  bill  brought  by  a  defend- 


240  ANSWER. 

ant  against  a  plaintiff,  or  other  parties  in  a  former  bill  depending, 
touching  the  matter  in  question  in  that  bill.  Mitf.  Eq.  PI.  80,  81 ; 
Story's  ^Eq.  PL,  sees.  389,  402;  White  v.  Buloid,  2  Paige,  164.  It 
is  treated  as  a  mere  auxiliary  suit,  or  as  a  dependency  upon  the 
original  suit,  Story's  Eq.  PL,  sec.  399 ;  Slason  v.  Wright,  14  Ver- 
mont, 208 ;  and  can  be  sustained  only  on  matter  growing  out  of 
the  original  bill.     Daniel  v.  Morrison,  6  Dana,  186. 

A  bill  of  this  kind  is  usually  brought  either  to  obtain  a  neces- 
sary discovery  of  facts  in  aid  of  the  defense  to  the  original  bill,  or 
to  obtain  full  relief  to  all  parties,  in  reference  to  the  matters  of  the 
original  bill.  Mitf.  Eq.  PL  81 ;  Story's  Eq.  PL,  sec.  389.  In  cases 
of  discovery,  a  cross-bill  is  no  longer  needed,  since  an  examina- 
tion of  the  parties  gives  all  a  cross-bill  could  attain,  and  probably 
more.  But  the  other  ground  still  subsists,  and  is  provided  for  in 
this  provision  of  the  code. 

It  frequently  happens,  and  particularly  if  any  question  arises 
between  two  defendants  to  a  bill,  that  the  court  can  not  make  a 
decree  without  a  cross-bill  to  bring  every  matter  in  dispute  com- 
pletely before  the  court.  Rogers  v.  McMacham,  4  J.  J.  Marsh. 
37  ;  Troup  v.  Haight,  1  Hopk.  239.  In  such  a  case  it  becomes 
necessary  for  some  one  of  the  defendants  to  the  original  bill  to  file 
a  bill  against  the  plaintiff  and  other  defendants  in  that  bill,  or 
some  of  them,  and  bring  the  litigated  point  properly  before  the 
court.  Pattison  v.  Hall,  9  Cow.  747.  One  defendant  can  not  have 
a  decree  against  a  co-defendant  without  a  cross-bill  with  proper 
prayer  and  process,  or  answer  as  in  an  original  suit.  Talbot  v. 
McGee,  4  Mon.  379  ;  Elliott  v.  Pell,  1  Paige,  263. 

A  cross-bill  is  a  mode  of  defense.  Field  v.  Schieffelin,  7  Johns. 
Ch.  252;  Galatian  v.  Erwin,  1  Hopk.  48;  S.  C,  8  Cow.  361  ;  Cart- 
wright  v.  Clark,  4  Metcalf,  194.  The  original  bill  and  the  cross- 
bill are  but  one  cause.  It  must  be  confined  to  the  subject  matter  of 
the  original  bill,  and  can  not  introduce  new  and  distinct  matters 
not  embraced  in  the  original  suit;  and  if  it  do  so,  no  decree  can 
be  found  on  these  matters.  May  v.  Armstrong,  3  J.  J.  Marsh. 
262  ;  Daniel  v.  Morrison,  6  Dana,  186  ;  Gouverneur  v.  Elmendorff, 
4  Johns.  Ch.  357.  The  plaintiff  in  a  cross-bill  can  not  contradict 
the  assertions  in  his  answer  in  the  original  bill,  Hudson  v.  Hudson, 
3  Rand.  117  ;  and  where  the  allegations  of  a  cross-bill  are  incon- 
sistent with  the  admissions  of  the  answer,  they  can  not  be  taken 
as  true,  though  unanswered.  Savage  v.  Carter,  7  Dana,  414.  A 
cross-bill,  if  seasonably  filed,  may  be  sustained  for  the  purpose  of 


ANSWER.  241 

obtaining  an  equitable  set-off.  Cartwright  v.  Clark,  4  Metcalf,  104 ; 
Troup  v.  Haight,  1  Hopk.  239. 

It  lies  also  to  have  an  agreement,  sought  to  be  specifically  exe- 
cuted, delivered  up,  or  canceled;  for,  although  the  plaintiff  should 
fail  to  obtain  a  decree  under  his  original  bill,  he  might  still  bring 
his  action  at  law  for  damages  sustained  by  the  non-performance. 
Cooper's  Eq.  PI.  86,  87.  If  the  only  object  of  a  bill  be  to  enforce  a 
contract,  a  cross-bill  to  rescind  a  different  contract  and  with  other 
parties  about  the  same  property,  will  not  lie.  But  where  the 
vendor  of  land,  among  other  things  in  his  bill,  asserts  a  lien  for 
the  purchase  money,  against  an  assignee  of  his  covenant  for  title, 
the  latter  may  sustain  a  cross-bill  for  a  rescission  of  that  contract. 
Wickliffe  v.  Clay,  1  Dana,  589.  Where  a  bill  is  filed  to  set  aside 
an  agreement  or  conveyance,  the  conveyance  or  agreement  can 
not  be  confirmed  or  established  without  a  cross-bill  filed  by  the 
defendant.  Connoekan  v.  Christie,  11  Wheat.  446.  It  seems  that 
a  cross-bill  is  always  necessary,  where  the  defendant  is  entitled  to 
some  positive  relief,  beyond  what  the  scope  of  the  plaintiff's  suit 
will  afford  him.  Pattison  v.  Hull,  9  Cow.  747.  The  proper  time 
for  filing  a  cross-bill,  where  such  bill  is  necessary,  is  at  the  time 
of  the  putting  in  the  answer  to  the  original  bill,  and  before  the 
issue  is  joined  by  the  filing  of  the  replication.  And  as  the  matters 
of  defense,  upon  which  a  cross-bill  is  founded,  must  be  stated  in 
the  answer  to  the  original  suit,  as  well  as  in  the  cross-bill,  it  can 
seldom  be  necessary  to  delay  the  filing  of  the  cross-bill  till  after 
the  original  cause  is  at  issue.  Irvin  v.  DeKay,  10  Paige,  319,  322 ; 
Cartwright  v.  Clark,  4  Metcalf,  110,  111. 

Upon  hearing  a  cause,  it  sometimes  appears  that  the  suit  already 
instituted  is  insufficient  to  bring  before  the  court  all  matters  neces- 
sary to  enable  it  fully  to  decide  upon  the  rights  of  all  the  parties. 
This  most  frequently  happens  where  persons  in  opposite  interests 
are  co-defendants,  so  that  the  court  can  not  determine  their  oppo- 
site interests  upon  the  bill  already  filed,  and  the  determination  of 
their  interests  is  yet  necessary  to  a  complete  decree  upon  the  sub- 
ject matter  of  the  suit.  In  such  a  case,  if  upon  hearing  the  cause 
the  difficulty  appears,  and  a  cross-bill  has  not  been  exhibited  to 
remove  the  difficulty,  the  court  will  direct  a  bill  to  be  filed,  in 
order  to  bring  before  it  all  the  rights  of  all  the  parties  fully  and 
properly  for  its  decision,  and  will  reserve  the  directions  or  declara- 
tions which  it  may  he  necessary  to  give,  or  make,  touching  the 
matter  not  fully  in  litigation  by  the  former  bill,  until  this  new  bill 

VOL.  I — 16 


242  ANSWER. 


is  brought  to  a  hearing.  Mitf.  Eq.  PI.  82,83 ;  1  Smith's  Ch.  Pr. 
460;  Story's  Eq.  PL,  sec.  396;  Field  v.  Schieffelin,  7  Johns.  Ch. 
253,  254;  Pattison  v.  Hull,  9  Cow.  747  ;  Cartwright  v.  Clark,  4 
Metcalf,  104. 

And  if  a  creditor,  who  has  come  in  under  a  decree  in  favor  of 
creditors  against  a  debtor,  should  require  relief  for  the  purpose  of 
assisting  the  investigation  of  demands  affecting  the  estate,  before 
the  master,  which  relief  can  not  be  obtained  under  the  original 
bill,  or  by  a  rehearing,  he  may,  even  without  the  direction  of  the 
court,  file  a  cross-bill  for  the  purpose  ;  for  he  might  not  have  had 
an  opportunity,  at  an  earlier  stage  of  the  proceedings,  of  present- 
ing his  case  and  his  objections.  Latouch  v.  Dunsany,  1  Sch.  &  Lef. 
137 ;  Story's  Eq.  PI.,  sec.  397. 

A  cross-bill  should  state  the  original  bill  and  the  proceedings 
thereon,  and  the  rights  of  the  party  exhibiting  the  bill,  which  are 
necessary  to  be  made  the  subject  of  cross-litigation,  or  the  ground 
on  which  he  resists  the  claims  of  the  plaintiff  in  the  original  bill, 
if  that  is  the  object  of  the  new  bill.  3  Daniels'  Ch.  Pr.  1746.  It 
must  be  confined  to  the  subject  matter  of  the  original  bill,  and  can 
not  introduce  new  and  distinct  matters  not  embraced  in  the  orig- 
inal suit ;  and  if  it  do  so,  no  decree  can  be  founded  on  those  mat- 
ters :  for,  as  to  such  matters,  it  is  an  original  bill,  and  they  can  not 
properly  be  examined  at  the  hearing  of  the  first  suit.  A  demurrer 
was  allowed  to  a  cross-bill  to  have  usurious  securities  delivered  up, 
because  it  did  not  offer  to  pay  the  sum  really  due.  Mason  v.  Card- 
iner,  4  Brown  Ch.  C.  436.  Whenever  a  cross-bill  is  brought  against 
co-defendants  in  a  suit,  the  plaintiff  in  such  suit  must  be  named  a 
defendant  together  with  them.     Cooper's  Eq.  PL  85. 

I  refer  for  the  above  statement  of  a  cross-bill  to  3  Daniels'  Ch. 
Pr.  1742,  where  the  whole  subject  is  discussed.  This  provision  is 
permissive,  and  not  mandatory.  The  right  to  file  a  cross-bill  still 
exists,  if  the  party  chooses  to  select  that  course ;  but  in  that  case  a 
new  service  will  have  to  be  made,  as  in  the  original  action  against 
the  defendants  in  the  cross-petition;  while,  by  an  answer  in  the 
nature  of  a  cross-petition,  no  new  service  is  necessary,  as  the  an- 
swer is  a  part  and  parcel  of  the  original  action,  in  which  the  par- 
ties are  already  before  the  court.  It  will,  therefore,  be  preferable 
to  set  up  the  claim  of  the  defendant  in  his  answer.  The  answer 
need  not  state  all  that  a  cross-bill  was  required  to  state,  because 
the  original  case  is  a  part  of  the  proceedings  already,  and  there- 
fore need  not  be  repeated.  No  more  need  be  stated  than  is  neces- 
sary, in  addition  to  the  statements  of  the  petition,  to  show  the  de- 


ANSWER.  243 


fendant's  right  to  the  relief  he  demands,  with  the  necessary  prayer 
for  that  specific  relief  which  he  seeks.  The  answer,  after  meeting 
the  facts  set  up  in  the  petition,  as  though  no  cross-relief  was  to  he 
sought,  will  then  proceed,  as  in  an  original  petition,  to  state  the 
case  of  the  defendant  and  the  grounds  of  the  specific  relief  for 
which  he  is  to  ask. 

The  cases  are  numerous  in  which  this  course  may  be  taken.  If 
an  elder  or  younger  mortgagee  files  a  petition  to  foreclose,  no  fore- 
closure can  he  had  by  a  defendant  having  another  mortgage  on  the 
same  premises,  or  a  judgment  lien,  unless  he  file  an  answer  in  the 
nature  of  a  cross-petition ;  and  hence,  if  the  plaintiff's  claim  is 
settled  or  paid  off  without  a  sale,  the  whole  action  is  at  an  end ; 
but  if  the  defendant  wishes  himself  to  force  the  payment  of  his 
own  mortgage  or  lien,  come  what  may  with  the  plaintiff's  case,  he 
must  in  his  answer  set  up  his  mortgage,  as  in  an  original  suit  by 
him,  and  ask  for  an  account  and  a  sale  of  the  premises,  if  the 
claim  is  not  paid  by  a  day  to  be  fixed  by  the  court.  So  if  the  de- 
fendant wishes  to  set  aside  an  agreement  sued  on,  he  must  in  his 
answer  set  up  the  grounds  on  which  he  claims  a  rescission,  and  pray 
for  it.  So  in  every  case  where  a  defendant  has  affirmative  rights, 
growing  out  of  the  matters  set  up  in  the  petition,  which  he  can 
enforce  against  either  the  plaintiff  or  a  co-defendant  or  defendants, 
he  may,  in  an  answer  in  the  nature  of  a  cross-petition,  set  this 
right  up  and  pray  for  affirmative  relief,  as  he  could  in  a  petition 
embracing  the  same  matter.  This  has  been  the  practice  in  Ken- 
tucky for  a  long  time,  and  her  decisions  will  explain  the  mode  of 
this  proceeding  and  the  practice  under  it;  though  there  can  be 
little  or  no  difficulty  in  practice,  after  thoroughly  mastering  the 
nature  and  use  of  a  cross-petition,  for  whatever  case  would  justify 
the  filing  of  a  cross-bill  will  justify  the  defendant  in  setting  up  the 
same  'matter  for  relief  in  an  answer  in  the  nature  of  a  cross-^ 
petition  or  bill. 

The  answer  being  filed  setting  up  the  claim,  all  the  parties  to  the 
suit  having  adverse  claims  to  the  one  set  up,  may  reply  to  it,  and  thus 
raise  whatever  L-sucs  the  rights  of  all  parties  to  the  matters  or 
claim  set  up  therein  may  require.  Whether  any  other  pleading 
can  he  had  may  he  debatable.  The  code  says  a  reply  shall  be  the 
lasl  pleading  in  a  ease;  and  yet  in  this  matter,  thus  set  up  in  the 
answer,  the  reply  is  an  answer.  A  reasonable  construction  of  the 
code  would  he  to  allow  an  answer  to  the  case,  so  far  as  it  is  a  cross- 
petition,  and  then  a  reply  to  that  answer.  The  pleadings  then 
would  he  the  same,  as  in  case  of  a  cross- petition  under  the  code. 


244  ANSWER. 

The  original  code  did  not  provide  for  a  cross-petition  in  the  an- 
swer ;  and  this  is  a  reason  more,  why,  when  it  is  allowable  to  set 
up  a  case  for  affirmative  relief  in  favor  of  a  defendant,  the  answer 
should  be  treated  as  it  is — a  petition — and  the  pleadings  should 
follow  the  cause  allowed  on  the  petition  in  any  other  case.  By 
that  construction,  pleadings  will  be  uniform  in  all  cases,  and  the 
rights  of  parties  made  uniform  in  a  court  of  justice,  however  the 
action  may  originate,  whether  by  a  petition  or  by  an  answer. 

How  New  Matter  is  to  be  Pleaded. 

Little  is  necessary  to  be  added  on  this  point  to  what  was  said 
under  the  head  of  petition.  The  character  of  the  answer  must, 
like  the  petition,  depend  upon  the  nature  of  the  case — whether  it 
is  one  founded  on  legal  or  equitable  rights.  There  must,  from  the 
very  nature  of  things,  be  a  difference  between  an  answer  to  a  case 
of  equity  and  one  to  a  case  at  law.  We  will  first  consider  the 
question  as  it  relates  to  a  case  at  law. 

The  object  of  the  answer  here  is  to  bring  the  dispute  between 
the  parties  to  an  issue — to  an  affirmation  on  the  one  side  and  a  de- 
nial on  the  other.  This  is  necessary  to  enable  the  court  to  know 
clearly  what  is  the  issue  to  try,  and  the  jury  to  respond  under- 
standing^ and  distinctly  to  this  issue.  A  jury  still  being  the  tri- 
bunal to  pass  upon  the  facts,  definiteness  and  clearness  in  the 
issues  are  just  as  important  as  ever.  In  cases,  then,  at  law,  all  of 
which  are  to  be  tried  by  a  jury,  if  either  party  requires  it,  the  an- 
swer must  be  substantially  what  a  plea  was  under  the  old  system. 
The  facts  relied  upon  as  a  defense  must  be  clearly,  distinctly,  and 
methodically  stated,  so  as  to  present  a  single  point  or  issue,  which, 
if  found  for  the  defendant,  will  enable  the  court  to  render  a  judg- 
ment in  his  favor.  Hence  an  answer  which  sets  up  a  payment, 
tender,  release,  accord  and  satisfaction,  statute  of  limitation,  former 
recovery,  etc.,  must  be  substantially  what  a  plea  setting  up  those 
defenses  was.  Of  course,  it  need  not  have  all  the  same  formality, 
but  it  must  contain  the  substance  of  a  plea.  Nothing  less  than 
that  will  contain  all  that  is  necessary  to  constitute  a  defense.  Nor 
can  anything  be  briefer  than  the  form  of  these  old  pleas  as  they 
have  been  used  in  Ohio,  stripped  as  they  have  been  of  all  unneces- 
sary verbiage.  And  experience  has  demonstrated  that,  where  they 
have  not  been  substantially  followed,  pleadings  have  been  doubled 
and  trebled  in  length.  If  this  course  be  followed,  the  pleader  may 
be  sure  he  is  right.  If  he  undertakes  in  each  case  to  improvise 
forms,  he  can  never  be  certain  he  is  right  until  the  court  has 


ANSWER.  245 

passed  upon  it ;  and  the  court  may  construe  his  language  very  dif- 
ferently from  what  he  did  himself,  and  thus  he  may  find  himself 
out  of  court  on  a  simple  misunderstanding ;  whereas,  if  forms  are 
used  which  have  acquired  a  fixed  legal  meaning,  there  is  no  room 
for  misunderstandings.  The  court  and  the  bar  know  exactly  what 
that  formula  means.  Who  ever  heard  of  any  dispute  as  to  the  mean- 
ing of  a  plea  of  release,  payment,  former  recovery,  statute  of  lim- 
itation, etc.  ?  The  language  in  which  they  are  expressed  has  been 
defined  so  clearly  that  no  one  can  misunderstand  or  misconceive 
what  they  must  mean. 

The  same  is  true  whenever  an  equitable  defense  is  to  be  put  in  as 
an  answer  to  a  suit  at  law.  The  facts  must  be  briefly  and  methodi- 
cally stated,  and  nothing  but  the  facts  must  be  stated.  This  is  a 
matter  of  some  difficulty,  unless  the  pleader  distinctly  comprehends 
the  distinction  between  the  facts  which  constitute  the  defense,  and 
the  evidence  by  which  those  facts  are  to  be  proved.  Experience 
under  the  code  shows  that  evidence  is  much  oftener  stated  in  the 
pleadings  than  the  facts;  and  hence  the  pleadings  are  confused  and 
of  unnecessary  length.  The  answer  setting  up  an  equitable 
defense,  must  not  be  like  an  answer  or  bill  in  chancery  in  a  similar 
case;  because  in  equity  pleading  both  facts  and  evidence  were 
generally  stated,  in  order  to  obtain  an  admission  from  the  adverse 
party  of  the  truth  of  the  evidence.  Equity  pleading  also  allowed 
the  pleader  to  go  into  a  detailed  statement  of  the  facts  and  evi- 
dence, which  is  inconsistent  with  pleadings  at  law,  in  cases  to  be 
tried  by  a  jury.  Let  us  take  an  instance:  A  defendant  claims  he 
is  a  surety,  and  has  been  released  by  the  conduct  of  the  plaintiff. 
What  are  the  facts  in  such  a  case  ?  That  he  is  a  surety ;  that  the 
plaintiff  knew  it;  and  that  he,  for  a  valuable  consideration,  agreed 
with  the  principal,  without  the  consent  of  the  defendant,  to  extend 
the  time  of  payment  from  such  a  time  to  such  a  time.  Here  are 
the  facts,  and  all  the  facts ;  the  evidence  to  prove  them  may  be 
very  various  and  voluminous. 

In  cases  depending  upon  principles  of  equity,  the  answer,  like  the 
petition,  must  be  varied  somewhat  from  the  naked  forms  of  a  legal 
plea.  The  code,  however,  has  varied  very  much  the  law  regulating 
answers  in  equity  cases.  In  chancery,  the  defendant  had  to  an- 
Bwer  the  whole  bill,  as  nothing  was  admitted  by  an  omission  to 
answer ;  now,  every  averment  not  denied  is  admitted,  and  need  not 
therefore  I"'  answered  to.  Where,  therefore,  the  answer  looks 
simply  to  :i  denial,  it  need  t;ike  no  notice  of  any  averments,  s;ive 
those  which  the  defendant  intends  to  deny.     If  the  case  stated  in 


246  ANSWER. 


the  petition  is  incorrectly  stated,  the  defendant  may  deny  generally 
the  allegations  contained  in  the  petition.  If,  when  the  case  is 
heard,  there  is  a  variance  between  the  case  made  in  the  petition 
and  the  case  proved,  the  petition  must  bo  dismissed  or  amended  at 
the  costs  of  the  plaintiff.  Under  the  practice  in  chancery,  the  de- 
fendant was  bound  to  set  up  what  were  the  facts  or  contract,  as 
understood  by  him,  and  in  that  way  notify  the  plaintiff  if  he 
claimed  a  different  case  from  that  stated  in  the  bill.  The  plaintiff 
could  then  amend  or  not,  as  he  claimed  the  facts  to  be.  Under  the 
code,  it  would  seem,  nothing  of  this  kind  is  required  of  the  defend- 
ant. All  discovery  is  discarded,  and  the  answer  is  now  a  mere 
pleading;  and,  as  such  pleading,  it  must  either  deny  the  case 
made,  or  set  up  new  matter  constituting  a  defense.  If  the  defend- 
ant has  made  a  contract,  but  one  different  from  that  stated  in  the 
petition,  he  meets  the  case  made  by  a  simple  denial;  an  answer 
that  he  had  made  a  different  contract  would  be  of  no  value  or 
validity,  unless  preceded  by  a  denial  of  the  one  set  out;  and  after 
that  denial,  the  balance  of  the  answer  would  be  redundant  and  im- 
material. The  issue  must  be  on  the  denial,  and  not  on  any  case 
stated  in  the  answer  and  not  set  up  in  the  petition. 

If  the  code  is  to  be  construed  literally,  then  the  answer  in  an 
equity  case  is  cramped  down  to  all  the  strictness  of  pleadings  at 
law.  The  answer  must  either  be  a  denial,  or  the  statement  of  new 
matter  constituting  a  defense,  etc. ;  and  each  new  matter  amount- 
ing to  a  defense  must  be  stated  sejoarately.  If,  then,  a  party  has 
several  distinct  grounds  of  defense  to  the  same  cause  of  action,  he 
must  state  each  one  separately,  and  in  such  a  form  that  each  state- 
ment will  constitute  a  perfect  bar  to  the  suit ;  and  he  can  not,  as 
heretofore,  by  giving  in  his  answer  a  history  of  the  case,  propound 
together  all  the  defenses  which  the  detailed  facts  of  the  case  will 
justify.  There  were  no  objections  to  this  kind  of  pleading  in  a 
case  triable  by  the  court;  but  there  are  insuperable  ones  in  a  case 
triable  by  a  jury.  Unless  the  code  can  receive  a  very  liberal  con- 
struction, answers  in  equity  cases  must  be  bound  down  to  all  the 
certainty,  and  point,  and  separation,  of  pleas  at  law ;  which  will 
probably  be  found  very  inconvenient  in  practice.  There  is  more 
difficulty  in  giving  this  construction  to  the  language  of  the  code 
which  describes  and  limits  the  answer,  than  in  that  which  describes 
the  petition.  Still  it  may  be  held,  without  absolute  legislation, 
that  each  class  of  cases  is  to  be  stated  according  to  its  character, 
and  that,  on  this  ground,  the  nature  of  a  case  in  equity  requires 
the  facts  to  be  stated  differently,  in   an  answer,  from  what  is 


ANSWER.  247 


required  in  a  case  at  law.  Still  it  is  very  difficult  thus  to  limit,  or 
rather  to  extend,  the  language  of  the  code,  so  as  to  permit  an  an- 
swer even  in  an  equity  case  to  be  shaped  in  any  other  manner  than 
in  that  in  which  pleadings  at  law  are  required  to  be  shaped.  The 
learned  codifiers  have  followed  the  language  of  a  court  of  law  in 
defining  an  answer,  instead  of  that  of  a  court  of  equity.  If  such  is 
to  be  the  construction  given  to  the  code,  then  the  court  in  a  case  in 
equity  must  respond  to  all  the  issues  made,  as  distinctly  as  the 
verdict  of  a  jury  to  the  issues  in  a  case  at  law.  Otherwise  parties 
will  be  concluded  by  facts  which  were  never  found  against  them. 
Several  pleas  are  interposed  to  a  case  in  equity ;  a  general  finding 
for  the  defendant  would  be  a  finding  that  all  these  separate  defenses 
had  been  proved,  when  in  point  of  fact  only  a  single  one  of  them 
might  have  been  proved  ;  and  these  issues  thus  found  on  the  record 
might  conclude  the  parties  in  subsequent  suits :  because  a  matter 
once  distinctly  put  in  issue,  and  found,  concludes  the  parties  by 
estoppel  in  any  other  suit  where  the  same  matter  is  put  in  issue. 
Dame  v.  Wingate,  12  N.  H.  291;  Arnold  v.  Arnold,  17  Pick.  9; 
Nash  Digest,  316,  sec.  15 ;  9  W.  L.  J.  11.  Hence  the  court  must 
in  every  case  pass  directly  on  each  issue  made,  affirming  or 
negativing  it  as  the  proof  may  require.  There  is  no  other  safe 
course  for  either  the  parties  or  the  court.  Otherwise  the  court  will 
be  finding  falsehoods,  and  the  parties  be  concluded  in  their  rights 
without  knowing  it.  It  would  therefore  appear  reasonable,  when 
a  party  went  into  new  matter,  in  an  answer  to  a  case  in  equity, 
that  he  should  be  permitted  to  state  the  whole  of  his  new  matter 
together,  since  the  whole  of  it  constitutes  a  defense.  Still  it  is  a 
matter  involved  in  doubt,  and  parties  must  frame  their  pleadings 
in  view  of  this  uncertainty. 

The  Number  of  Defenses,  and  inconsistent  ones. 
The  code  provides  that  the  defendant  may  set  forth  as  many 
defenses,  counter-claims,  and  set-offs,  as  he  may  have.  In  this 
language  there  is  no  limitation  on  the  right  of  the  defendant  in 
setting  u])  his  defenses,  whet  her  they  are  consistent  or  inconsistent. 
In  Lansingl)  v.  Parker  e1  ah,  9  Pr.  288,  it  was  held  that  pleas 
which  were  no1  inconsistent  under  the  former  practice  of  the 
courts  will  not  be  held  inconsistent  as  answers  under  the  code. 
Hence  the  following  defenses  were  held  to  be  well  joined  in  a  ease 
for  an  assanll  and  battery:  1.  General  denial;  2.  That  plaintiff 
committed  the  firsl  assault,  etc. ;  3.  That  plaintiff  was  at  defend- 
ant's inn,  making  great  noise,  etc.;  was  requested  to  leave,  and 


248  ANSAVER. 


refusing,  the  defendant  laid  hands  gently  on  him  to  remove  him, 
etc.  A  contrary  opinion  had  been  expressed  by  Crippen,  J.,  in 
Eoe  v.  Eogers,  8  Pr.  356.  In  Stiles  v.  Comstock,  9  Pr.  48,  the  same 
doctrine  was  maintained  as  in  the  first  case — that  the  code  did  not 
limit  the  defendant  to  consistent  answers.  Such,  too,  is  the  plain 
language  of  the  code ;  and  yet  the  provision,  which  requires  all 
pleading  to  be  sworn  to,  practically  deprives  him  of  this  plain 
right,  because  he  can  not  make  oath  to  inconsistent  defenses  with- 
out swearing  two  ways  at  once.  A  plea  of  not  guilty  and  a  justi- 
fication to  an  action  of  trespass  can  not  both  be  true.  If  there  was 
no  trespass,  then  there  is  nothing  to  justify.  And  yet  in  many 
cases  both  of  these  pleas  may  be  absolutely  necessary  to  the  full 
protection  of  the  rights  of  a  defendant. 

In  equity  a  defendant  might  set  up  by  answer  as  many  defenses 
as  he  might  have;  but  not  inconsistent  defenses.  In  a  verified 
answer  it  was  held  that  he  could  not  set  up  two  defenses  that  could 
not  both  be  true  in  fact.  11  Paige  C.  46 ;  lb.  49.  Where  the 
defenses,  however,  both  or  all  of  them,  may  be  true,  though  en- 
tirely different  in  their  nature,  they  are  not  inconsistent.  Thus, 
in  Buddington  v.  Davis,  6  Pr.  401,  it  was  said  that  the  defendant 
might  deny  all  the  allegations  of  the  complaint  (being  for  libel), 
and  then,  by  a  separate  statement  in  the  answer,  allege  the  truth 
of  the  publication ;  and  then  again  aver,  by  another  plea,  that  the 
publication  was  privileged.  All  these  several  defenses  might  be 
true,  and  proof  of  one  would  defeat  the  action.  But  in  an  action 
for  trespass,  if  the  defendant  should  deny  that  he  committed  the 
trespass,  and  allege  matter  in  avoidance,  as  a  former  recovery  for 
the  same  trespass,  it  is  manifest  that  both  can  not  be  true,  and  the 
latter  is  utterly  inconsistent  with  the  former.  Van  Santvoord's 
PI.  286. 

Inconsistent  pleas  in  an  answer  will,  of  course,  be  stricken  out 
on  motion,  or  the  defendant  compelled  to  elect  on  which  one  he 
will  rest  his  case. 

It  will  thus  be  seen  that,  while  in  one  section  it  grants  the  de- 
fendant a  right  to  make  any  and  all  defenses,  yet  in  another  sec- 
tion it  limits  such  several  defenses  to  those  that  are  not  inconsist- 
ent. The  effect  of  this  state  of  the  law  is  to  obstruct  parties  in 
making  their  defenses,  and  to  compel  them  in  all  doubtful  cases  to 
select  between  several  doubtful  and  inconsistent  defenses ;  and  it 
may  turn  out  on  the  trial  that  he  has  omitted  the  only  one  the  juiy 
would  have  found  for  him. 


ANSWER.  249 


Sham  Answers. 

"Where  answers  are  sworn  to,  there  can  be  no  such  thing  as  a 
sham  answer.  An  answer,  to  be  a  sham  one,  must  set  up  new  mat- 
ter ;  and  such  new  matter,  being  known  to  be  false,  constitutes 
the  plea  or  answer  a  sham  plea  or  answer.  When  sworn  to,  it  is 
to  be  taken  as  true ;  and  the  only  objection  that  can  then  lie  to  it 
is  its  legal  insufficiency  as  a  defense,  counter-claim,  or  set-oif. 
Bennedict  v.  Tanner,  10  Pr.  455 ;  Sherman  v.  Bushnell,  7  lb.  171. 

The  object  of  a  sham  answer  was  by  setting  up  new  matter,  re- 
quiring a  reply,  to  secure  a  default,  and  in  that  way  a  continuance. 
Payment  or  fraud  in  obtaining  a  note  might  be  plead,  though 
wholly  untrue,  and  though  the  party  never  expected  to  offer  evi- 
dence under  them  for  the  mere  purpose  of  delay  ;  hence,  on  motion 
the  court  would  strike  it  out  as  a  fraud  on  the  practice  of  the  court. 
This  delay  may  be  obtained  now  if  the  docket  is  so  crowded  that 
all  issues  can  not  be  tried  at  the  term  ;  hence,  there  may  be  a  mo- 
tive for  getting  up  a  sham  answer,  as  a  mere  trick  to  secure  de- 
lay.    The  court  has  still  the  power  to  strike  it  out  in  a  case  where 
the  falsehood  or  immateriality  of  the  answer  is  apparent.     In  The 
People  v.  McCormick,  18  N.  Y.  315,  the  court  held  that  an  answer 
denying  a  material  allegation  in  the  petition  might  be  stricken  out 
as  sham,  although  duly  verified ;  and  that  an  answer,  the  falsity 
of  which  is  apparent,  is  sham,  irrespective  of  its  form  as  affirma- 
tive or  negative,  or  its  scope  as  assuming  to  put  in  issue  the  whole 
or  a  part  of  the  material  allegations  in  the  petition ;  and  that  a 
motion  to  strike  out  one  of  several  defenses  as  sham  may  be  united 
with  an  application  for  judgment  on  account  of  the  frivolousness 
of  the  other  defenses.     Strong,  J.,  says:  "A  defense  is  sham  in  the 
legal  meaning  of  that  term,  which  is  so  clearly  false  in  fact  that  it 
does  not  in  reality  involve  any  matter  of  substantial  litigation. 
The  chief  characteristic  of  a  sham  defense  is  its  undoubted  falsity. 
Such  a  mere  formal  defense  is  sometimes  designated  as  a  false  de- 
fense.    The  words  '  sham  or  false,'  applied  to  such  a  defense,  sig- 
nify the  same  thing.     .     .     .     The  defense  may  be  entirely  clear 
in  form,  but  nevertheless  sham,  for  the  sole  reason  that  it  is  false. 
Brewster  v.  Bostwick,  6  Oowen,  M;  Oakley  v.  Devoe,  12  Wend. 
196;  Broome  County  Bank  v.  Lewis,  18  Wend.  565.     Irrelevancy 
in  an  answer,  in  analogy  to  impertinence  in  an  answer  in  chancery, 
under  our  former  judicial  system,  may  consist  in  statements  which 
are  not  material  to  the  decision  of  the  case;  such  as  do  not  form 
or  tender  any  material  issue.     Woods  v.  Morrell,  1  Johns.  Ch.  LOS. 


250  ANSWER. 


"  But  it  is  strenuously  contended  that  a  defense  merely  controvert- 
ing a  material  allegation  in  the  complaint  can  not  be  sham,  and 
the  practice  of  the  Supremo  Court  on  the  subject  of  sham  defenses, 
under  the  former  system  of  pleading  and  practice,  is  confidently  re- 
ferred to  in  support  of  the  position.  Before  the  code  that  court  pos- 
sessed, as  a  part  of  its  common-law  powers,  a  supervision  and  control 
over  the  forms  Of  pleading  to  prevent  the  perversion  and  abuse  of 
those  forms  to  purposes  of  mere  delay  and  injustice.  This  author- 
ity was  often  exercised  from  the  earliest  period  in  striking  out  false 
or  sham  pleas,  and  scandalous,  irrelevant,  and  redundant  matter ; 
and  in  pursuance  of  that  authority,  the  general  rule  above  referred 
to  was  adopted  and  extensively  applied  in  practice.  It  was  not, 
however,  deemed  proper  by  the  court,  before  or  after  the  adop- 
tion of  that  general  rule,  to  go  so  far  in  the  exercise  of  that  power 
as  to  strike  out  the  general  issue ;  and  hence  it  was  established,  as 
an  exception  to  the  doctrine  in  reference  to  striking  out  pleas  as 
false  or  sham,  that  the  general  issue  would  not  be  stricken  out  for 
such  a  cause.  This  exception  was  entirely  a  matter  of  sound  legal 
discretion  in  the  court ;  it  did  not  arise  from  a  want  of  power  to 
strike  out  the  general  issue  in  like  manner  as  any  other  plea,  when 
it  was  sought  to  make  it  an  instrument  of  mere  wrong  and  vexa- 
tion, nor  did  it  spring  from  the  idea  that  the  general  issue  was  not 
capable  of  the  essential  elements  and  features  of  a  sham  pleading. 
The  wisdom  of  this  exception  is  not  very  apparent;  and  I  can  per- 
ceive no  good  reason  for  it  beyond  the  difficulty  in  most  cases  from 
the  comprehensive  scope  of  the  general  issue  in  establishing  satis- 
factorily its  falsity.  That  plea,  under  the  old  system,  was  gener- 
ally not  only  a  denial  in  a  short  form  of  all  that  was  material 
in  the  declaration,  thereby  putting  the  plaintiff  to  the  proof  of  his 
cause  of  action,  but  it  included  many  affirmative  defenses  which 
were  admissible  in  evidence  under  it.  The  reason  sometimes  stated 
for  the  exception  was,  that  the  defendant  had  a  right  to  put  the 
plaintiff  to  the  proof  of  his  cause  of  action  in  all  cases,  whether  the 
former  had  any  defense  or  not.  Broome  County  Bank  v.  Lewis,  18 
"Wend.  565  ;  Mier  v.  Cortledge,  8  Barb.  75.  But  I  know  of  no  bet- 
ter right  to  obstruct  the  plaintiff  in  the  enforcement  of  an  honest 
demand,  to  which  there  is  no  defense  by  the  general  issue,  than  by 
a  special  plea.  The  former  might  be — as  easily  at  least  as  the  lat- 
ter, and  was  oftener  in  practice — made  the  means  of  dishonestly 
postponing  the  collection  of  a  just  demand,  and  thereby  working 
injury  to  a  plaintiff.  The  evil  of  false  pleas  of  the  general  issue 
was  severely  felt,  and  remedies  were  attempted — as  by  requiring 


ANSWER.  251 

an  affidavit  of  merits  to  prevent  a  cause  being  moved  out  of  its 
order  on  the  calendar  at  the  circuit  or  an  inquest ;  and  by  the  act 
of  1840  providing  for  a  verification  of  pleas  in  certain  cases,  and 
the  rules  of  the  Supreme  Court  thereon.  22  Wend.  644.  It  was 
doubtless  the  delay,  expense,  and  injustice  to  which  this  plea  of 
the  general  issue  was  so  frequently  perverted,  which  contributed 
as  much  as  any  other  single  cause  to  the  new  system  of  pleading 
and  practice  introduced  by  the  code. 

"  Whatever  may  have  been  the  reason,  under  the  old  system  for 
limiting  the  exercise  of  the  power  to  strike  out  false  or  sham  pleas, 
to  those  presenting  affirmative  defenses,  it  has  no  application  under 
the  new  to  defenses  in  denial  of  the  complaint,  or  of  the  material 
portions  of  it,  or  denying  any  knowledge  or  imformation  thereof 
sufficient  to  form  a  belief.  Such  denials  simply  put  in  issue  the 
allegations  to  which  they  relate  ;  and  they  may  be  false  or  sham, 
and  abused  for  improper  purposes,  as  well  as  a  defense  of  any 
other  character.  One  leading  policy  of  the  new  system  is  to  sup- 
press falsehood  and  secure  truth  in  the  pleadings ;  and  for  that 
purpose,  among  others,  all  the  forms  of  pleadings  theretofore  ex- 
isting are  abolished  and  other  simple  forms  prescribed.  For  the 
same  purpose  provision  is  made  whereby  a  plaintiff,  by  verifying 
his  complaint  by  affidavit,  may  require  a  similar  verification  of  the 
answer  of  the  defendant.  Allegations  not  controverted  are  to  be 
taken  as  true,  and  an  ample  remedy  is  afforded  for  a  departure 
from  the  truth  in  an  answer,  by  providing  that  sham  and  irrelevant 
answers  and  defenses  may  be  stricken  out  on  motion,  and  upon 
such  terms  as  the  court  in  their  discretion  impose.  A  limitation 
of  this  section  by  the  courts  to  affirmative  answers  and  defenses 
would,  to  a  great  extent,  frustrate  the  policy  referred  to,  and  allow 
of  great  abuses  in  pleading,  and  improper  and  injurious  delays  of 
justice. 

"  It  is  further  objected  that  the  answer  being  duly  verified,  it  is 
erroneous  to  strike  out  the  first  defense  as  sham ;  but  the  code 
makes  no  distinction,  on  the  subject  of  striking  out,  between 
answers  which  are,  and  those  which  are  not  verified,  and  there  is 
none  in  principle.  If  an  answer  clearly  appears  to  be  sham,  the 
spirit  of  the  code  in  relation  to  pleadings  requires  it  should  be 
stricken  out,  notwithstanding  it  has  been  verified  in  the  usual 
form.  Cases  may,  and  do  frequently  arise  where  the  proof  of  the 
falsity  of  a  verified  answer  is  so  strong,  thai  the  answer  should 
not  he  allowed  to  stand  without  a  special  affidavit  stating  the  par- 
ticular matters  relied  on  to  support  it. 


252  ANSWER. 


"Another  objection  to  the  order  in  respect  to  the  first  defense,  is 
that  the  defendant  was  entitled  to  have  the  material  issues  formed 
by  that  defense  tried  by  a  jury,  and  that  it  could  not  lawfully  bo 
tried,  against  his  consent,  on  ex  parte  affidavits.  This  objection, 
if  available  in  this  case,  might  equally  be  made  to  orders  striking 
out  affirmative  defenses  forming  material  issues,  and  would  be 
fatal  to  the  section  above  mentioned  of  the  code,  and  the  entire 
practice  as  to  striking  out  false  or  sham  answers.  The  true  answer 
to  the  objection  is  that  the  right  of  the  defendant  to  a  trial  by 
jury  depended  upon  there  being  a  real  issue  to  be  tried  ;  that  the 
court  had  power  to  determine  whether  there  was  such  an  issue,  or 
whether  the  apparent  issue  was  fictitious  and  sham,  not  to  try  the 
issue  if  there  was  not  one  in  truth  as  well  as  in  form  ;  and  that 
the  order  decides,  on  most  satisfactory  proof  supporting  it,  that 
the  defense  was  destitute  of  truth  and  substance,  and  presented  no 
real  issue.  Such  an  authority  over  the  pleadings  is  of  the  same 
nature  with  the  power  to  require  a  verification  of  the  pleadings  as 
a  condition  of  their  admissibility.  If  the  court  may  refuse  to 
allow  an  answer,  unless  first  verified,  it  may  strike  out  an  answer 
after  it  has  been  made,  unless  the  defendant  will  verify  it.  So  it 
may,  on  apparent  proof  of  the  falsity  of  a  verified  answer,  strike 
it  out,  unless  further  verified  in  a  more  special  and  particular 
manner.  The  exercise  of  this  power,  in  either  case,  is  not  a  trial 
of  an  issue ;  no  more  so  in  one  case  than  in  the  other.  It  is  an 
indispensable  power  to  the  protection  and  maintenance  of  the 
character  of  the  court  and  the  proper  administration  of  justice. 

"  This  power  should  be  carefully  exercised,  and  not  extended  be- 
yond its  just  limits,  as  above  mentioned.  It  is  a  power  simply  to 
inquire  whether  there  is  in  fact  any  question  to  be  tried,  and,  if 
there  is  not — but  the  defense  is  a  plain  fiction, — to  strike  out  the 
fictitious  defense." 

The  above  is  a  full  discussion  of  sham  pleading  under  the  code. 
The  expression  above  in  the  former  edition,  that  a  sworn  answer 
will  not  be  stricken  out  as  sham,  is  mere  opinion  as  to  the  practice ; 
but  if  a  sham  answer  is  put  in  under  oath,  there  is  no  doubt  of  the 
power  of  the  court  to  strike  it  out  on  motion.  The  code  requires 
all  answers  to  be  sworn  to,  and  yet  provides  for  striking  them  out 
if  they  are  sham  and  false.  If  the  sham  character  is  made  out 
clearly,  perjury  can  be  no  reason  for  refusing  to  strike  it  out. 

In  the  cases  of  Wayland  v.  Tysen,  45  N.  Y.  281,  and  Thompson 
v.  Erie  Kailroad  Co.,  lb.  468,  the  new  Court  of  Appeals  have  so  far 
modified  the  above  opinion  of  Strong,  J.,  in  the  above  case  of 


ANSWER.  253 


People  v.  McComler,  as  to  hold  that  the  court  has  no  power  to 
strike  out  a  sham  answer  consisting  of  a  general  denial.  The 
court  say  :  "  The  motion  to  strike  it  out  was  made  upon  affidavits 
tending  to  show  its  falsity ;  and  the  court,  arriving  at  this  conclu- 
sion, made  the  order  striking  it  out  as  sham.  The  code  (sec.  152) 
provides  that  sham  and  irrelevant  answers  and  defenses  may  be 
stricken  out  on  motion,  and  upon  such  terms  as  the  court  may  in 
their  discretion  impose.  This  answer  is  the  equivalent  of,  and 
substitute  for  the  general  issue  under  the  common-law  system  of 
pleading.  It  gives  to  the  defendant  the  same  right  to  require  the 
plaintiff  to  establish  by  proof  all  the  material  facts  necessary  to 
show  his  right  to  a  recovery  as  was  given  by  that  plea.  Under 
the  common-law  system,  the  general  issue  could  not  be  struck  out 
as  sham,  although  shown  by  affidavits  to  be  false.  Broome  Co. 
Bank  v.  Lewis,  18  Wend.  565.  This  was  not  upon  the  ground  that 
a  false  plea  was  not  sham.  That  was  always  so  regarded,  but 
upon  the  ground  that  a  party  making  a  demand  against  another 
through  legal  proceedings  was  required  to  show  his  right  by  com- 
mon-law evidence,  and  that  ex  parte  affidavits  were  not  such  evi- 
dence." 

This  reasoning  is  not  satisfactory.  The  defendant,  under  the 
code,  has  no  more  right  to  put  in  a  false  general  denial  than  he 
has  of  an  answer  containing  new  matter  which  is  false.  The 
object  of  the  code  is,  that  the  issues  to  be  tried  shall  be  real  issues, 
involving  an  honest  contention  between  the  parties.  Under  the 
old  practice,  where  the  parties  were  not  under  oath,  they  were  per- 
mitted to  put  in  any  answer,  and  the  rule  then  was  that  the  de- 
fendant had  the  right  to  compel  the  plaintiff  to  prove  his  case. 
But  is  such  the  policy  of  the  code  ?  By  no  means.  Its  policy  is 
to  exclude  all  false  issues,  and  compel  the  parties  to  be  at  the  ex- 
pense of  trying  what  is  really  and  bona  fide  a  contention  between 
them — "  What  right  has  the  defendant  now  to  put  the  plaintiff  to 
a  proof  of  his  case,  when  he  knows  that  the  petition  is  true?  And 
because  a  dishonest  defendant  shall  interpose  a  false  denial,  is  he 
to  be  permitted  to  have  it  stand,  and  put  the  plaintiff  to  the  proof 
of  liis  case,  when  it  is  made  clearly  to  appear  to  the  court  that  the 
denial  is  false  and  Bham?"  The  argument,  that  on  such  a  denial 
the  party  is  entitled  to  a  trial  by  jury,  is  sophistical;  for  lie  has 
DO  more  rigb.1  to  try  the  truth  of  a  general  denial  by  a  jury  than 
h<-  has  an  answer  setting  up  new  matter,  whieh  is  in  form  a  de- 
fense. If  the  falsehood  of  the  one  must  be  tried  by  the  court,  so 
must  the  other.     But  on  a  motion,  its  truth  is  not  the  contest, — it 


254  ANSWER. 


is  whether  the  party  pleading  has  any  reason  to  justify  him  in  put- 
ting in  a  general  denial  or  pleading  new  matter.  If  it  is  boldly 
false  in  the  one  case  or  the  other,  it  ought  to  be  stricken  out.  He 
has  no  right  to  compel  the  plaintiff  to  prove  his  case,  when  he 
knows  that  case  to  be  true.  The  new  matter  and  a  denial  are  both 
put  in  under  the  sanction  of  an  oath  ;  and  if  that  fact  is  to  weigh 
in  the  matter,  it  applies  to  the  new  matter  as  well  as  to  a  denial. 
Nor  can  a  party  in  the  one  case,  more  than  in  the  other,  put  the 
plaintiff  to  the  expense  of  a  trial  by  perjury.  The  expense  in  a 
commercial  transaction  of  making  out  a  case  is  often  very  great, 
and,  under  the  code,  he  is  not  to  be  put  to  that  expense,  unless  the 
defendant  has,  or  honestly  believes  he  has,  a  bona  fide  defense,  to 
be  made  by  a  denial  or  the  statement  of  new  matter.  In  either 
case,  the  oath  of  the  party  is  set  aside,  and  the  court  inquire 
whether  in  fact  the  defendant  has  any  reason  to  make  the  one  de- 
fense or  the  other.  There  is  much  greater  objection  to  a  false 
denial  than  to  new  matter  which  is  false,  because  the  latter  admits 
the  plaintiff's  case  as  made  in  his  petition,  and  puts  the  defense  on 
a  single  point,  where  the  burden  of  proof  rests  upon  the  party 
pleading  it.  There  is  then  a  much  stronger  reason  for  striking  out 
a  false  general  denial  than  there  is  for  striking  out  new  matter 
which  is  false.  In  my  opinion,  therefore,  the  reasoning  of  Strong, 
J.,  is  much  more  convincing  than  that  in  the  later  cases.  Our  code 
requires  all  pleadings  to  be  sworn  to,  which  is  not  now  the  case  in 
New  York. 

The  fact  that  an  answer  is  insufficient  in  form  or  substance,  does 
not  necessarily  determine  that  it  is  frivolous.  That  only  may  be 
regarded  as  frivolous  which  is  made  to  appear  so  incontrovertibly 
by  a  bare  statement  of  it,  and  without  argument.  If  an  argument 
is  required  to  show  that  the  pleading  is  bad,  it  is  not  frivolous. 
Young  v.  Kent,  46  N.  Y.  672. 

Matter  in  Abatement. 

Matter  in  abatement,  as  understood  under  the  former  system  of 
pleading,  may  now  be  joined  with  matter  in  bar.  It  may  be  re- 
marked that  unless  matter  in  abatement  constitutes  a  defense, 
there  is  no  authority  for  pleading  it.  The  only  authority  for  plead- 
ing any  matter  other  than  denial,  is  that  it  is  new  matter  consti- 
tuting a  defense.  There  is  no  authority  for  but  one  answer,  and 
the  authority  to  set  forth  in  that  answer  all  the  defenses  the  de- 
fendant has,  is  clear  and  explicit.  Per  Marvin,  P.  J.,  in  JMahew  v. 
Eobinson,  10  Pr.  162. 


ANSWER.  255 

Miscellaneous  Matter. 

Sec.  125.  This  section  provides  that  in  actions  for  libel  or  slan- 
der, the  defendant  may  allege  the  truth  of  the  matter  charged  as 
defamatory,  and  may  prove  the  same,  and  any  mitigating  circum- 
stances, or  either. 

This  is  another  of  those  provisions  introduced  into  the  New 
York  code  to  get  rid  of  some  absurd  decision  of  their  late  court  for 
the  correction  of  errors.  In  Eoot  v.  King,  7  Cowen,  613,  it  had 
been  held  that  where  a  defendant  pleaded  a  justification  in  libel 
or  slander,  and  failed  on  the  trial  to  sustain  it,  he  could  not  then  go 
into  evidence  tending  to  mitigate  the  damages.  This  absurd  de- 
cision has  never  been  followed,  we  believe,  elsewhere.  Id  Ohio, 
the  law  is  well  settled  that  evidence  in  mitigation  may  be  received 
as  well  where  there  is,  as  where  there  is  not,  a  plea  of  justification. 
De  Witt  v.  Greenfield,  5  Ohio,  225.  Hence  this  section  has  no 
application  to  our  law,  unless  it  is  to  make  it  infinitely  worse. 
Does  the  section  have  the  effect  of  precluding  such  evidence,  unless 
it  is  stated  on  the  record?  It  is  presumed  not,  since  its  terms  are 
not  mandatory,  but  permissive.  A  pleader  may  spread  on  the 
record  his  facts  in  mitigation ;  if  he  has,  however,  the  folly  to  do 
it,  he  can  not  on  the  trial  prove  any  fact  not  embraced  in  his  state- 
ment. 

An  answer  setting  up  a  justification  in  libel  or  slander,  must 
confess  the  speaking  of  the  words.  Annibal  v.  Hunter,  6  Pr.  255 ; 
1  Code,  N.  S.  403;  Sayles  v.  Woden,  6  Pr.  84;  Buddington  v.  Davis, 
G  Pr.  401 ;  Porter  v.  McCready,  1  Code,  K  S.  88 ;  Lewis  v.  Kendall, 
G  Pr.  59. 

An  answer  merely  stating  that  the  words  spoken  are  true,  is 
insufficient  as  a  justification  ;  it  should  state  the  facts  which  go  to 
constitute  the  crime  or  offense  imputed,  so  that  an  issue  either  of 
luw  or  fact  may  be  framed;  or  as  it  is  better  expressed  in  Fry  v. 
Bennet,  1  Code,  N.  S.  255,  where  an  alleged  libel  consists  of  a 
charge  general  in  its  character,  a  justification  on  the  ground  of  the 
truth  of  the  charge  must  state  the  facts  which  show  the  charge  to 
be  true.  In  Annibal  V.  Hunter,  6  Pr.  255,  Willard,  J.,  says:  "I 
am  aware  thai  the  schedule  of  forms  annexed  to  the  first  report  of 
the  commissioners  on  practice  and  pleading,  gives  countenance  to 
each  an  answer  as  the  present.  These  forms  were  never  adopted 
by  the  Legislature  ;  and  the  one  for  a  justification  in  libel  or  slan- 
der is  utterly  inconsistent  with  the  code.     The  code  requires  that 


256  ANSWER. 


an  answer  shall  contain,  in  respect  to  each  allegation  of  the  com- 
plaint controverted  by  the  defendant,  a  general  or  specific  denial 
thereof,  or  a  statement  of  any  new  matter  constituting  a  defense. 
In  this  case  the  defendant  does  not  deny  the  speaking  of  the  words, 
but  says  they  are  true.  In  other  words,  he  charges  the  plaintiff 
with  the  crime  of  perjury.  His  answer  should  contain  a  statement 
of  the  facts  which  constitutes  that  crime.  The  plaintiff  is  well 
entitled  to  reply,  controverting  those  facts,  and  thus  have  an  issue 
framed  which  can  be  tried.  This  answer,  as  drawn,  states  no  facts, 
nor  times,  nor  circumstances  when  and  where  the  alleged  perjury 
was  committed.  In  anonymous  libel  (3  Pr.  406),  an  answer  like 
this  was  overruled  as  bad.  The  same  question  has  repeatedly  been 
decided  in  the  same  way.  Vide  also  7  Pr.  227;  9  lb.  282 ;  10  lb. 
79.  These  cases  settle  that,  under  the  code,  the  law  of  pleading  is, 
in  Ohio,  just  what  it  was  before,  and  that  this  section  has  here  no 
effect  whatever. 

Thi3  section  is  somewhat  discussed  in  the  case  of  Wachter  v. 
Quenser,  29  N.  Y.  547.  The  present  doctrine  is  this,  says  Denio, 
C.  J.,  in  this  case :  The  defendant  may  set  up  a  justification,  or  he 
may  allege  facts  short  of  full  justification,  but  giving  some  color 
to  the  charge,  by  way  of  modification,  or  he  may  do  both  ;  and  in 
either  case  he  may  prove  the  facts  as  they  are,  though  they  fall 
short  of  a  justification;  and  the  jury  may  take  them  into  consid- 
eration for  the  purpose  of  mitigating  the  damages.  Bush  v.  Brosser, 
1  Kern.  347  ;  Bisbey  v.  Show,  2  Kern.  57.  This  rule,  however,  has 
no  reference  to  the  practice  in  Ohio.  It  is  here  decided  that  in  an 
action  for  slander  for  calling  the  plaintiff  a  thief,  the  defendant 
might  give  in  evidence  in  mitigation  of  damages  that  the  plaintiff 
had  driven  away  from  one  W.  a  flock  of  geese  belonging  to  said 
W.  Wilson  v.  Apple,  3  Ohio,  270.  Circumstances  tending  to  lead 
one  to  suspect  or  believe  the  plaintiff  guilty  of  the  crime  charged 
may  be  received  in  mitigation  of  damage.  No  statement  of  miti- 
gating circumstance  need  be  stated  on  the  record,  and  the  courts, 
since  the  code,  have  ruled  in  accordance  with  the  prior  decision. 
Haywood  v.  Foster,  16  Ohio,  88.  Prior  charges,  uttered  more  than 
a  year  before  suit,  may  be  offered  in  evidence  to  show  malice, 
though  not  set  out  in  the  petition.  Stearns  v.  Cox,  17  Ohio,  590. 
So  matters  not  capable  of  supporting  an  action,  or  constituting  a 
justification,  may  be  given  in  evidence  in  aggravation,  or  mitiga- 
tion of  damages,  as  there  is  no  other  mode  of  bringing  it  before 
the  court  and  jury.  Fisher  v.  Patterson,  14  Ohio,  418,  424.  All 
this  evidence  is  in  Ohio  admissible  under  a  plea  of  not  guilty,  on 


ANSWER.  257 

an  inquiry  of  damages,  on  a  trial  on  a  plea  of  justification,  if  the 
party  fails  in  his  proof  of  the  plea  of  justification. 

This  case  of  Wachter  v.  Quenser,  29  N.  Y.  547,  also  decides  that 
a  plea  of  justification  is  not  altered  by  the  code,  but  must  state  the 
facts  constituting  the  justification  as  definitely  and  specially  as 
•would  be  required  in  an  indictment,  if  the  justification  involves  a 
charge  of  crime.  "  Mr.  Chitty,"  says  Denio,  C.  J.,  "  states  the  rule 
very  accurately  in  saying  that  the  defendant,  in  this  class  of  actions, 
must  justify  by  stating  the  particular  facts  which  evince  the  truth 
of  the  imputation,  and  that  the  rule  holds  whether  the  imputation 
upon  the  plaintiff's  character  be  of  a  general  or  specific  nature, 
lie  adds  that  this  is  necessary,  although  the  libel  contain  a  general 
imputation  upon  the  plaintiff 's  character,  that  the  plea  should  state 
specific  facts  showing  in  what  particular  instance,  and  in  what 
exact  manner,  he  has  misconducted  himself.  1  Chitty  on  PL  49-4, 
495.  I  do  not  conceive  that  the  substance  of  this  rule  is  abolished 
by  the  code.  In  respect  to  new  matter  in  an  answer,  the  direction 
is  only  that  it  must  be  in  ordinary  and  concise  language,  without 
repetition.  This  certainly  does  not  allow  a  reiteration  of  the  libel- 
ous words,  and  an  averment  that  they  are  true,  without  the  state- 
ment of  a  single  fact  showing  them  to  be  so.  Take,  for  instance, 
a  charge  that  one  is  a  thief  or  a  murderer,  or  that  he  has  commit- 
ted perjury.  A  statement  in  the  answer  that  the  words  are  true 
would  not  be  a  justification,  and  it  would  fall  just  as  far  short  of 
being  a  statement  of  facts  to  be  proved  by  way  of  mitigation.  It 
is  a  statement  of  nothing ;  it  is  simply  a  repetition  of  the  libel. 
Such  is  the  precise  character  of  the  answer  in  this  case,  so  far  as  it 
is  to  meet  the  imputation  of  borrowing  and  running  away.  It 
does  not  furnish  the  slightest  clue  to  the  case  which  the  defendant 
intends  to  prove  on  the  trial.  The  provision  of  the  section  of  the 
code  just  referred  to  is  that  the  answer  (in  slander  and  libel)  may 
allege  both  the  truth  of  the  matter  charged  as  defamatory,  and  any 
'mitigating  circumstances.  This  certainly  does  not  mean  that  it 
may  be  alleged  in  general  terms,  without  any  statement  of  facts  or 
particular  circumstances.  The  requirement  that  the  answer  should 
set  up  the  matter  to  be  relied  on  was  intended  to  prevent  surprise, 
by  informing  the  plaintiff  of  what  he  must  expect  to  meet."  It 
will  thus  be  seen  thai  tliis  section  has  not  changed  the  law  in  rela- 
tion to  ]>lc:is  of  justification  in  actions  for  libel  or  slander.  There 
arc  certain  words  which  imply  many  acts  to  constitute  the  charge. 
as  "  whore,"  and  the  like  ;  a  plea  of  justification  averring  that  she  is 

VOL.  I — 17 


258  ANSWER. 


a  -\vhore,  as  new  matter  may  be  good,  as  it  implies  evidence  of 
various  acts  to  prove  the  truth  of  the  charge.  A  woman  is  not 
necessarily  a  whore  because  she  has  a  bastard  child,  or  because  she 
has  been  guilty  of  an  act  of  incontinence.  It  implies  much ;  it 
implies  a  woman  who  makes  a  business  of  selling  her  person  out 
to  every  comer  for  money.  This  is  a  state  of  case  where  the  facts 
tend  to  multiplicity,  and  where  general  pleading  is  allowable.  It 
was  allowable  to  aver  that  a  woman  was  a  common  scold,  because 
the  facts  to  make  out  the  case  were  many  and  multiplied.  The 
Supreme  Court  in  Indiana,  overlooking  this  distinction,  held  that 
to  a  charge  of  being  a  whore,  it  was  a  good  plea  to  say  she  had 
had  a  bastard  child  by  a  certain  person.  This  act  did  not  make  a 
whore  by  any  straining  of  language,  nor  by  any  definition  of  the 
word  in  any  dictionar}r.  I  believe,  therefore,  that  a  general  plea 
in  such  a  case  is  allowable.  Alcorn  v.  Hooker,  7  Blackf.  68.  If  a 
plea  is  to  be  more  specific,  it  must  state  several  acts  of  incontinence 
like  the  form  in  another  part  of  this  work.  Still  it  seems  to  me  a 
proper  case  for  general  pleading,  as  the  rule  is  stated  in  the  review 
of  the  case  of  Saunders  v.  Stotts,  6  Ohio,  297 ;  2  West.  Law  Jour. 
297. 

Sec.  120.  This  section  also  has  no  meaning  in  Ohio.  It  never 
was  necessary  here  to  set  out  facts  to  show  jurisdiction.  Our  courts 
are  courts  of  general  jurisdiction,  of  the  organization  and  juris- 
diction of  which  the  courts  will  take  notice.  No  one  has  deemed 
it  necessary,  in  counting  on  the  judgment  of  a  mayor,  to  set  forth 
that  both  parties  were  resident  of  the  jurisdiction.  If  the  party 
was  served,  then  he  is  concluded  by  the  judgment ;  if  he  was  not 
served,  then,  of  course,  the  judgment  is  void.  We  presume,  there- 
fore, that  this  section  will  be  treated  as  a  nullity  in  Ohio,  where 
the  law  never  required  any  more  than  this  section  of  the  code  re- 
quires. 

Sec.  117.  This  section  provides  for  filing  copies  in  actions  founded 
on  an  account,  note,  bill,  or  other  written  instrument,  as  evidence 
of  indebtedness.  This  section  does  not  apply  to  actions  founded 
on  principles  of  equity,  as  action  on  note  and  mortgage ;  nor  does 
it  apply  to  all  common-law  actions.  Where  the  action  sounds  in 
damages,  as  in  covenant,  etc.,  no  copy  need  be  filed.  A  copy  is 
only  necessary  in  cases  where  the  plaintiff  demands  judgment  for 
sum  certain,  with  interest  from  a  fixed  time.  Such  was  the  decision 
of  District  Court,  in  Scioto  county,  at  its  May  term,  1858. 


REPLY.  259 


CHAPTER  XIII. 


EEPLY. 

1.  The  plaintiff  may  demur  or  reply  to  the  answer  of  the  de- 
fendant. 

2.  Sec.  101.  The  plaintiff  may  demur  to  one  or  more  defenses 
set  up  in  the  answer,  stating  in  his  demurrer  the  grounds  thereof; 
and  whei*e  the  answer  contains  new  matter,  the  plaintiff  may  reply 
to  such  new  matter,  denying,  generally  or  specifically,  each  alle- 
gation controverted  by  him ;  and  he  may  allege,  in  ordinary  and 
concise  language,  and  without  repetition,  any  new  matter  not  in- 
consistent with  the  petition,  constituting  an  answer  in  law  to  such 
new  matter.     To  this  reply  the  defendant  may  demur. 

3.  Sec  127  Every  material  allegation  of  the  petition  not  con- 
troverted by  the  answer,  and  every  material  allegation  of  new 
matter  contained  in  the  answer  not  controverted  by  the  reply, 
shall,  for  the  purposes  of  the  action,  be  taken  as  true  ;  but  the  alle- 
gation of  new  matter  in  the  reply  shall  be  deemed  controverted 
by  the  adverse  party,  as  upon  a  direct  denial  or  avoidance.  Alle- 
gations of  value,  or  of  amount  of  damage,  shall  not  be  considered 
as  true  by  failure  to  controvert  them. 


It  will  be  seen  that  the  code  has  been  essentially  changed  in 
reference  to  the  reply  since  the  publication  of  the  first  edition  of 
this  work.  Several  disputed  propositions  there  discussed  are  by 
this  change  resolved  in  conformity  to  suggestions  there  submitted. 
It  was  there  denied  that  a  defendant  could  demur  to  new  matter 
in  the  answer ;  but  I  then  claimed  that  a  fair  interpretation  of 
sections  101  and  102  of  the  code  allowed  the  defendant  to  test  the 
legal  sufficiency  of  the  new  matter  on  a  demurrer.  The  present 
section,  as  above  cited,  now  expressly  authorizes  such  demurrer, 
and  so  resolves  all  doubt.  1  also  suggested  certain  difficulties  to 
which  parties  mighl  be  subjected  by  reason  of  requiring  no  reply 
to  an  answer,  ami  Betting  up  new  matter  by  way  of  defense.  This 
section  changes  the  original  code,  and  requires  an  answer  setting 
up  new  matter,  to  be  replied  to  either  by  a  general  or  special  do- 


260  REPLY. 

nial,  or  by  the  statement  of  new  matter,  which  in  law  shall  consti- 
tute an  answer  to  this  defense.  To  this  reply,  no  other  rejoinder 
than  a  demurrer  can  be  interposed  by  the  defendant. 

The  code,  as  it  now  stands,  allows  the  plaintiff:  1.  To  demur  to 
the  answer,  whether  the  same  consists  of  new  matter,  constituting 
a  defense,  or  counter-claim,  or  set-off;  2.  Requires  him  to  generally 
or  specially  deny  the  material  allegations  contained  inthe  answer, 
whether  the  same  be  new  matter  constituting  a  defense,  or  a  coun- 
ter-claim, or  set-off;  or,  3.  To  set  up  such  new  facts  as  in  law  will 
be  an  answer  or  bar  to  the  new  matter,  counter-claim,  or  set-off. 
"We  will  speak  of  each  of  these  in  their  order. 

I.  Demurrer  to  Answer. 

The  plaintiff  can  now  test,  by  demurrer,  the  legal  sufficiency  of 
any  new  matter  set  up  as  defense,  as  well  as  that  of  a  counter- 
claim or  set-off.  The  nature  and  form  of  this  demurrer  will  be 
the  same  as  a  demurrer  to  a  petition,  and  should  point  out  the  par- 
ticular objection  which  the  pleader  brings  against  the  matter  de- 
murred to.  The  only  substantial  grounds  for  a  demurrer  must  be 
that  the  new  matter  set  up  is  not  sufficient  in  law  to  bar  the 
plaintiff's  right  to  recover.  Where  the  demurrer  is  interposed  to 
a  counter-claim  or  set-off,  the  reason  alleged  must  be  that  the  an- 
swer does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
A  counter-claim  or  set-off  must  state  all  the  facts  necessary  to  show 
that  the  defendant  has  a  right  of  action  against  the  plaintiff,  and 
the  right  to  set  it  up  in  that  particular  action.  If  the  answer  does 
not  show  that  the  counter-claim  is  in  law  connected  with  the  same 
transaction  out  of  which  arises  the  plaintiff's  cause  of  action,  it  is 
bad,  and  must  be  ruled  out  on  demurrer.  The  same  is  true  of  a 
set-off.  Where  the  plaintiff's  claim  has  come  to  him  by  assign- 
ment, the  answer  must  set  forth  all  the  facts  necessary  to  show  a 
right  in  the  defendant  to  set  up  his  counter-claim  or  set-off  against 
the  assignee,  the  plaintiff  in  the  action.  Unless  it  does  this,  the 
answer  is  defective,  and  must  be  ruled  out  on  demurrer. 

In  the  case  of  The  People  v.  Booth  et  al.,  32,  N.  Y.  397,  the  court 
held  that  on  a  demurrer  to  the  answer  for  insufficiency,  the  de- 
fendants may  attack  the  petition  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  Davis,  J., 
says  '■  "  That  on  demurrer  to  an  answer  for  insufficiency,  the  de- 
fendants are  at  liberty  to  attack  the  complaint  on  the  ground  that 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
8  How.  261 ;  12  Barb.  573;  Code,  sees.  144,  148." 


REPLY.  261 

In  the  case  of  Shroyer  v.  Richmond,  1  Ohio  St.  455,  the  court 
held  that  upon  a  general  demurrer  to  an  answer  containing  several 
distinct  grounds  of  defense,  the  demurrer  must  be  overruled,  if 
any  one  of  the  defenses  is  in  law  sufficient  to  bar  the  plaintiff's 
action.  It  will  be  seen  that  the  same  rule  applies  to  an  answer 
containing  more  than  one  defense,  and  to  a  reply  that  applies  to  a 
petition  containing  several  causes  of  action ;  if  the  demurrer  is 
general  to  the  whole  petition,  answer,  or  reply,  and  any  one  of 
the  causes  of  action,  or  defenses,  or  replies,  is  good,  the  demurrer 
fails,  and  must  be  overruled ;  hence  it  is  necessary  as  a  matter  of 
precaution  to  demur  to  each  count  of  the  petition,  or  answer,  or 
reply  separately,  so  that  it  may  be  sustained  to  those  counts  which 
are  bad,  while  it  may  be  overruled  as  to  those  which  are  good. 
This  may  be  done  by  a  separate  and  distinct  demurrer  to  each 
count  in  petition,  answer,  or  reply,  or  probably  by  a  demurrer  single 
in  form  but  several  in  substance.  The  form  will  be  somewhat  like 
the  following :  "And  now  comes  the  said  defendant  and  demurs  sev- 
erally to  each  of  the  counts  in  the  said  petition,  answer,  or  reply, 
and  for  reasons  of  demurrer  states,"  etc.  The  cause  to  each  count 
may  be  stated,  if  the  same  does  not  apply  to  all ;  or  if  the  same 
reason  applies  to  all,  then  the  ground  may  be  stated  that  neither 
of  said  counts  contains  facts  sufficient  to  constitute  a  cause  of  ac- 
tion, or  to  bar  the  plaintiffs  right  of  action,  or  to  avoid  the  answer 
of  said  defendant,  and  show  a  cause  of  action  in  the  plaintiff.  I 
can  see  no  objection  to  this  form  of  a  several  demurrer,  and  it  ren- 
ders the  pleadings  briefer,  when  there  are  several  counts  in  the 
petition,  answer,  or  reply.  It  has  been  sanctioned  in  practice. 
S.  P.,  Hale  v.  O.  Nat.  Bank,  49  K.  Y.  626. 

1.  Demurrer  to  New  Matter. 

A  B,  Plaintiff,      ] 

vs.  >   Demurrer. 

C  D,  Defendant,    ) 

And  now  comes  the  said  A  B,  plaintiff,  and  says  that  the  several 
matters  set  up  in  the  answer  (or  in  the  first  count  or  second  count 
of  the  answer)  of  the  said  C  D,  defendant,  are  not  sufficient  in  law 
to  bar  the  action  of  the  said  plaintiff;  whereupon  he  prays  judg- 
ment. 

G  II,  Attorney  for  plaintiff. 

2.  Demurrer  to  Counter-claim  or  Set-off. 

And  now  comes  the  said  A  B.  plaintiff,  and  says  that  the  answer 
(or  the  first,  second,  etc.,  count  of  the  answer)  of  the  said  C  D,  defend- 


262  REPLY. 

ant,  does  not  state  facts  sufficient  to  constitute  a  cause  of  action  in 
favor  of  said  defendant  and  against  said  plaintiff;  wherefore  ho 
prays  judgment. 

The  demurrer  to  a  reply  may  be  in  the  following  form : 

3.  Demurrer  to  a  Reply. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  the  sev- 
eral matters  set  up  by  the  said  A  B,  plaintiff,  in  his  reply,  are  not 
in  law  sufficient  to  enable  him,  the  said  plaintiff,  to  maintain  his 
aforesaid  action  against  this  defendant ;  wherefore  the  said  defend- 
ant prays  judgment. 

II.  Reply  to  New  Matter  in  the  Answer. 

The  answer  of  new  matter  is  now  to  be  taken  as  admitted,  un- 
less denied ;  and  hence  must  be  met  with  a  denial,  or  with  a  reply 
setting  up  new  matter  by  way  of  avoidance. 

This  change  in  the  code,  so  far  as  common-law  actions  are  con- 
cerned, restores  the  course  of  pleadings  as  they  were  at  common 
law. 

Denials. — Nothing  need  be  added  to  what  has  already  been  said, 
under  the  head  of  Answer,  as  the  nature  and  form  of  a  denial  in  a 
reply.-  It  may  be  either  general — a  denial  of  all  the  facts  set  up 
in  the  answer — or  special — a  denial  of  some  one  material  allega- 
tion contained  in  the  answer. 

1.  General  Denial  to  Answer,  setting  up  Matter  of  Defense. 

And  now  comes  the  said  A  B,  plaintiff,  and  says  that  he  ought 
not  to  be  barred  of  his  said  action,  because  he  saith  that  the  several 
matters  set  up  in  said  answer  of  said  C  D,  defendant,  are  not  true 
as  therein  set  forth. 

Or  as  follows  :  Because  he  saith  that  he  denies  the  truth  of  all 
and  singular  the  averments  contained  in  the  answer  (or  first, 
second,  etc.,  count  of  the  answer)  of  the  said  C  D,  defendant. 

2.  Special  Denial. 

A  special  denial  must  of  course  contain  a  negation  of  some 
material  averment  in  the  answer ;  and  hence  its  form  is  simply  a 
denial  of  the  averment  substantially  in  its  words.  Its  form  will 
be  like  the  above  to  the  words  because  he  saith,  and  will  then  pro- 
ceed as  follows  :  that  the  said  defendant  did  not  pay  said  sum  of  , 
as  he  hath  in  his  said  answer  alleged ;  that  the  said  plaintiff  had  not 
notice  of  the  existence  of  said  defense  now  set  up  in  said  answer  at  the 


REPLY.  263 

time  of  the  transfer  of  said  note,  or  account,  etc.,  by  the  said  to 

the  said  plaintiff,  etc.  What  has  been  said  as  to  special  denials, 
under  the  head  of  Answer,  is  strictly  applicable  to  such  denials  in 
a  reply;  hence  it  is  unnecessary  to  enlarge  upon  their  nature 
here. 

III.  Reply  of  New  Matter — Constituting  a  Defense. 

As  the  defense  set  up  in  the  answer,  unless  it  can  be  denied,  is 
to  be  taken  as  true,  the  plaintiff  must  set  new  matter  by  way  of 
avoidance.  This  is  a  return  to  the  course  of  common-law  plead- 
ing, and  whatever  was  a  good  reply  under  the  law  of  pleading,  as 
then  understood,  is  a  good  reply  now  under  the  code. 

The  reply  must,  in  the  first  place,  not  be  inconsistent  with  the 
petition  ;  or  in  common-law  language,  it  must  not  be  a  departure  from 
the  cause  of  action  set  up  in  the  petition  ;  it  must  uphold  the  cause 
of  action,  must  show  a  right  to  recover  on  that  cause  of  action. 
A  departure  in  pleading  is  the  dereliction  of  an  antecedent  ground 
of  complaint  for  a  new  one,  and  not  fortifying  the  former.  Gould's 
PL  453.  It  is  the  allegation  of  new  matter  not  tending  to  fortify 
traversed  matter.  Paine  v.  Fox,  16  Mass.  129  ;  Darling  v.  Chap- 
man, 14  lb.  101;  Holey  v.  M'Pherson,  3  Heernysh,  104;  M'Aden 
v.  Gibson,  5  Alol.  341 ;  Kilgore  v.  Powers,  5  Blackf.  22  ;  Yeatman 
v.  Cullen,  5  Blackf.  240.  The  following  cases  in  Ohio  refer  to  this 
subject  of  replication  :  Eichmond  v.  Patterson,  3  Ohio,  368. 
Double  replications  are  bad  on  demurrer.  Several  replications 
may  be  filed.  Colter  v.  Doty,  5  Ohio,  593.  The  replication  of 
de  injuria  to  a  plea  of  justification  in  trespass  will  put  in  issue  only 
the  authority  set  up  in  the  plea.  If  the  party  relies  upon  a  new 
trespass,  excess  of  authority,  excessive  beating,  etc.,  he  must  re- 
ply the  fact  specially.  Parish  v.  Bigdon,  12  Ohio,  191.  "Where 
the  statute  of  limitations  is  pleaded,  a  new  promise  can  not  be  re- 
plied  ;  the  petition  must  be  founded  on  the  new  promise.  Hill  v. 
Henry,  17  Ohio,  9  ;  Drouillard  v.  White,  10  W.  L.  J.  385. 

Blatters  in  estoppel  may  be  replied.  3  East,  348;  1  Saund.  257  ; 
6  Term.  62;  2  Johns.  24;  4  Day,  431  ;  5  N.  H.  393;  17  Pick.  9;  12 
N.  II.  291  ;  IS  Pick.  564;  8  Blackf.  175;  4Gill  &  Johns.  345.  So  to  a 
plea  of  infancy,  the  plaintiff  may  reply  that  the  goods  were  necessa- 
ries, or  a  oew  promise  after  coming  of  ago.  3  Chit.  PI.  1146 ;  1  M. 
&  S.  724  :  :'.  II).  480 ;  2  B.  &  C.  826.  So  to  a  plea  of  tender,  plaint- 
ill'  may  reply  a  demand  and  refusal  after  tender  made.  5  Barn 
\  Aid.  630;  :;  Chit.  PI.  L155.  To  a  plea  of  release,  that  it  was 
obtained    by   fraud    or   duress.     :'>   Chit.   PI.   1158.     To  a  plea  of 


264  REPLY. 

license,  a  countermand.  3  Chit.  PL  1209 ;  11  East,  451.  To  a 
plea  of  escape  though  a  defect  of  fences,  that  defendant  turned 
cattle  in,  that  defendant's  cattle  are  unruly,  etc.  3  Chit.  PL  1209. 
To  a  justification  under  process,  a  new  assignment  of  an  imprison- 
ment before  issuing  of  process.  3  Chit.  PI.  1214.  To  a  plea  jus- 
tifying removal  of  cart,  etc.,  under  a  right  of  way,  new  assign- 
ment extra  viam.  10  East,  73;  3  Chit.  PL  1215.  There  can  prob- 
ably now  be  no  new  assignment  in  trespass  to  real  estate,  since 
the  petition  ought  to  identify  the  locus  in  quo.  To  a  plea  of  a 
right  of  way,  plaintiff  may  reply  unnecessary  damage,  or  that  de- 
fendant went  beyond  the  boundaries  of  the  way.  3  Chit.  PL  1217. 
There  are  of  course  numerous  other  matters,  which  may  be  set  up 
to  avoid  the  effect  of  a  bar  contained  in  an  answer ;  what  these 
are  must  be  determined  from  the  facts  of  each  case  and  from  the 
law  governing  the  case.  The  forms  found  in  3  Chit.  PL  render  it 
unnecessary  to  insert  any  in  this  work. 

The  language  of  our  code  is  slightly  different  from  that  of  New 
York ;  and  for  us,  these  questions  must  be  settled  by  the  language 
of  our  own  code.  As  preliminary  it  may  be  well  to  remark  that, 
unless  the  method  of  testing  the  sufficiency  of  a  defense  is  justified 
by  the  code,  there  is  no  way  provided  by  which  it  can  be  done. 
Section  118  provides  for  striking  out  on  motion  redundant  or  irrele- 
vant matter  from  any  pleading.  This  language  does  not  look  to 
striking  out  an  answer,  as  it  must  if  the  answer  contains  but  one 
defense.  The  answer  would  in  that  case  have  to  be  stricken  out, 
and  not  the  redundant  or  irrelevant  matter  contained  in  it.  These 
words  both  imply  that  the  plea  or  answer,  or  the  statement  of  any 
matter,  is  more  prolix  than  is  necessaiy ;  that  it  contains  language 
which  only  serves  to  incumber  the  record  and  increase  its  length. 
This  section  applies  as  well  to  petitions  as  to  answers ;  hence,  if 
the  one  plea  of  an  answer  can  be  stricken  out  for  insufficiency,  then 
can  also  a  count  in  the  petition.  But  this  can  not  be  done  as  to  a 
petition,  as  the  code  expressly  provides  that  such  an  objection  can 
only  be  taken  by  demurrer.  This  shows  what  meaning  the  codi- 
fiers  attached  to  these  words,  redundant  and  irrelevant — that  they 
meant  a  pleading,  containing  facts  enough  to  make  out  a  cause  of 
action,  or  defense,  but  also  containing  other  matters  having  nothing 
to  do  with  a  correct  and  brief  statement  of  the  cause  of  action,  or 
matter  constituting  a  defense;  and  that  when  this  redundant  or 
irrelevant  matter  was  stricken  out,  there  would  still  remain  a  suffi- 
cient cause  of  action,  or  new  matter  constituting  a  defense  in  law. 
This  seems  to  us  clearly  the  meaning  and  scope  of  this  section  118 ; 


REPLY.  265 

and  if  it  is  so,  then  it  gives  no  authority  to  the  court  to  test  in  this 
way  the  legal  sufficiency  of  a  pleading,  which  does  not  in  fact  con- 
tain redundant  or  irrelevant  matter.  If  the  sufficiency  of  a  count 
in  a  petition  can  not  be  so  tested,  how  can  the  sufficiency  of  a  state- 
ment of  new  matter  in  defense  be  so  tested  ?  If  an  insufficient 
count  is  not  redundant  or  irrelevant  matter,  how  can  a  plea  or  the 
statement  of  new  matter  in  defense  be  so  considered  ?  The  code 
does  not,  then,  provide  for  raising  this  question  on  motion. 

If  it  can  not  be  raised  by  demurrer  or  on  motion,  there  is  but 
one  other  way  it  can  be  raised,  and  that  is  to  move  the  court,  on 
the  trial,  to  reject  all  evidence  under  such  a  statement  in  an  an- 
swer. And  such  is  said  to  be  the  practice  in  New  York;  so  that  a 
party  never  knows  of  any  legal  objection  to  his  defense  till  it  is 
sprung  upon  him  at  the  trial,  and  that,  too,  after  all  the  costs  of  a 
trial  have  been  incurred.  That  is  certainly  strange  practice  which 
requires  the  parties  to  incur  the  expense  of  a  jury  trial  to  raise  a 
question  already  apparent  on  the  record,  and  which  question  could 
have  been  settled  on  a  demurrer  with  little  or  no  expense  to  the 
parties,  and  under  such  circumstances  that  full  consideration  could 
be  given  to  the  question — which  never  can  be  done  in  the  hurry  of 
a  jury  trial. 

The  question  as  to  what  could  be  set  up  in  a  reply  was  before 
the  court  in  the  case  of  Durbin  v.  Fisk,  16  Ohio  St.  533.  The  court 
say  that  "  by  his  petition  he  asserts  the  mere  legal  rights  of  the 
holder  of  a  promissory  note.  And  if  his  replication  could  be  re- 
garded as  seeking  equitable  relief  under  the  facts  there  stated,  it  is 
a  total  departure  from  the  petition.  A  plaintiff  can  recover  only 
on  the  causes  of  action  stated  in  his  petition.  It  is  not  the  province 
of  a  reply  to  introduce  new  causes  of  action.  This  can  only  be 
done  by  an  amendment  of  the  petition." 

This  case  shows  that  a  case  can  not  in  its  progress  be  varied,  or 
changed  into  another  and  different  cause  of  action.  The  same  rea- 
soning applies  to  an  answer  ;  no  more  can  the  defendant  set  up  a 
new  cause  of  action  against  the  plaintiff  by  way  of  defense,  unless  it 
fan  come  in  under  the  name  of  counter-claim  or  set-off.  These  are 
the  only  two  causes  of  action  which  a  defendant  can  set  up  in  his 
favor  against  the  plaintiff  in  an  action;  all  else  must  be  matter, 
which  defeat  the  plaintiff's  action.  To  an  action  to  recover  real 
estate,  evidence  showing  that  the  plaintiff  is  entitled  to  the  posses- 
sion of  the  premises  under  a  lease,  or  a  contract  of  purchase,  is 
evidence  defeating  the  plaintiff's  action,  and  driving  him  to  an 
action  on  tho  lease,  or  contract  of  sale.     So  by  this  decision,  the 


2G6  REPLY. 

plaintiff  could  not  reply  a  right  of  action  under  the  lease,  contract, 
or  other  agreement;  that  would  be  a  departure.  And  yet,  if  the 
defendant  to  a  legal  action  can  set  up  an  equitable  right  of  action, 
the  plaintiff  must  be  allowed  to  depart  from  his  cause  of  action  in 
the  petition  to  meet  the  equitable  cause  of  action  set  up  by  the  de- 
fendant. No  more  can  such  matter  come  up  as  a  counter-claim, 
because  a  counter-claim  looks  to  a  legal  remedy  in  answer  to  a 
legal  demand ;  if  the  action  is  one  in  equity,  then  no  counter-claim 
is  necessary,  for  all  matters  in  such  a  case  come  in  as  an  answer. 
This  was  the  law  under  the  old  practice,  and  there  is  nothing  in 
the  code  to  change  it. 

Reply  to  Counter-claim  and  Set-off. 

Little  need  be  said  on  this  head.  The  counter-claim  and  set-off 
are  new  suits,  in  which  the  answer  takes  the  place  of  a  petition, 
and  the  reply  the  place  of  an  answer.  Hence  the  plaintiff  can,  in 
his  reply,  set  up  any  defense  he  could  have  set  up  in  case  suit  had 
been  instituted  on  the  counter-claim  or  set-off.  The  rules,  there- 
fore, which  govern  the  answer  to  the  petition  will  govern  the  reply 
to  the  counter-claim  and  set-off.  It  was  held,  in  Eanney  v.  Smith, 
6  Pr.  420,  that  several  claims  might  be  included  in  a  single  count 
of  set-off  in  the  answer.  "  It  is  argued,"  says  the  judge,  "that 
each  note  constitutes  a  defense  to  the  extent  it  may  reduce  the 
plaintiff's  demand,  and  that  therefore  each  note  should  be  stated  in 
a  separate  statement  of  new  matter  in  the  answer.  This  does  not 
follow.  We  are  to  have  a  regard  to  the  nature  of  the  defense ;  and 
here  all  the  notes  constitute  a  set-off.  I  am  not  now  considering 
how  these  notes  should  be  described  or  set  out  in  the  answer ;  but 
it  is  not  objectionable  to  include  all  the  set-off  in  the  same  state- 
ment of  new  matter.  This  was  admissible  in  a  plea  under  the  sys- 
tem superseded,  although  a  declaration  formed  in  the  same  way 
would  have  been  bad  for  duplicity.  The  general  rule  was,  that  in 
point  of  form,  the  plea  of  set-off  should  contain  all  the  requisites 
essential  to  the  validity  of  other  pleas  in  bar.  1  Chit.  PI.  495 ; 
Barb,  on  Set-off,  79.  Duplicity,  however,  in  a  plea  of  set-off,  was 
not  a  cause  of  demurrer ;  in  other  words,  a  defendant  was  per- 
mitted to  include  in  the  plea  any  and  all  debts  or  demands  which 
by  law  he  was  allowed  to  set  off.  ...  It  was  not  objection- 
able to  state  in  the  same  plea  of  set-off  any  number  of  debts  or 
demands  which  the  law  allowed  to  be  set  off.  Nor  is  there  now 
any  objection  under  the  code."  There  can  be  no  doubt  that  this  is 
good  law.     The  answer  of  set-off  should  begin  by  stating  that  the 


REPLY.  267 

plaintiff  is  indebted  to  the  defendant  in  a  certain  amount,  and  pro- 
ceed to  set  forth  the  several  grounds  of  the  set-off,  and  conclude  by 
claiming  judgment  for  so  much,  to  be  applied,  as  far  as  necessary, 
toward  satisfying  any  demand  the  plaintiff  may  have  against  the 
defendant.  Hence  the  reply  must  be  framed  to  meet  such  a  claim 
of  set-off,  and  may  be  several  to  the  several  matters  set  up  by  way 
of  set-off,  if  it  is  necessary  for  the  defense  of  the  plaintiff  to  the 
same. 

In  Miller  v.  Losee,  9  Pr.  356,  it  was  held  that  where  the  defend- 
ant, in  his  answer,  sets  forth  a  cause  of  action  arising  on  contract 
other  than  that  which  constitutes  a  set-off,  the  plaintiff  may  reply 
any  facts  which  would  have  constituted  a  defense,  had  the  defend- 
ant sued  the  plaintiff  for  such  cause  of  action. 

It  was  further  held,  in  the  same  case,  that  the  plaintiff  to  a  set- 
off, set  up  by  the  defendant  in  his  answer,  might  reply  any  other 
cause  of  action  which  he  had  against  the  defendant,  and  had  not 
embraced  in  his  petition,  as  a  set-off  to  the  defendant's  set-off,  if 
the  claim  was  such  as  to  be  the  subject  of  a  set-off.  This  is  press- 
ing the  doctrine  of  set-off  to  a  very  liberal  extent ;  because,  if  the 
plaintiff  may  reply  by  a  set-off,  the  defendant  must  be  permitted 
to  answer  over  to  it,  a  thing  for  which  the  code  has  made  no  pro- 
vision. And  what  should  prevent  the  defendant  from  bringing 
forward  a  second  item  of  set-off  to  meet  this  of  the  plaintiff? 
Whatever  may  be  the  construction  of  the  New  York  code,  we 
think  ours  will  not  permit  it.  By  our  code,  the  plaintiff  may  al- 
lege new  matter  constituting  a  defense.  This  word,  as  used  in  our 
code,  never  includes  set-off  or  counter-claim.  The  plaintiff  may 
deny  generally  or  specially,  and  set  up  any  new  matter  constitut- 
ing a  defense.  This  is  the  language  applied  to  an  answer,  omitting 
the  additional  words  counter-claim  or  set-off.  The  reply,  therefore, 
must  be  limited  to  a  denial  of  the  facts  stated  in  the  set-off  or 
counter-claim,  or  to  such  new  matter  as  constitutes  a  defense  to 
the  claims  set  up,  whether  by  way  of  set-off  or  counter-claim.  And 
hence  no  new  claim  by  way  of  set-off  can  be  introduced  by  the 
plaintiff.  The  only  remedy  the  plaintiff  has  is  to  include  the  mat- 
ter in  his  petition,  on  leave  obtained  from  the  court,  where  the 
defendant's  set-off  has  really  been  extinguished  in  equity  by  other 
claims  of  the  plaintiff,  not  included  in  the  plaintiff's  petition.  Un- 
less this  can  be  done,  a  plaintiff  must  be  sure  to  include  all  his 
demands  is  his  action,  lesl  lie  be  thrown  out  of  courl  by  a  set-off 
which  may  be  canceled  by  a  claim  be  has  not  sued  upon.     We 

have  known  such  an  amendment  allowed  in  an  appeal  ease,  where 


2G8  REPLY. 

the  set-off  was  first  set  up  in  the  Court  of  Common  Pleas.  Still  it 
is  douhtful  whether  such  an  amendment  can  be  made. 

On  March  6,  1857  (54  Ohio  L.  23),  section  105  is  amended  by 
adding  the  following  to  it :  "  Any  party  may,  in  all  cases  in  which 
he  would  have  the  right  to  use  the  deposition  of  an  adverse  party, 
whether  plaintiff  or  defendant,  also  annex  to  his  pleading,  other 
than  a  demurrer,  interrogatories  pertinent  to  the  case,  which  inter- 
rogatories, if  not  demurred  to,  shall  be  plainly  and  fully  answered 
under  oath.  When  annexed  to  the  petition,  they  shall  be  answered 
within  the  time  limited  for  answer  to  the  petition ;  when  annexed 
to  the  answer,  they  shall  be  answered  within  the  time  limited  for 
a  reply ;  when  annexed  to  the  reply,  they  shall  be  answered  within 
the  period  allowed  for  answers  to  petitions,  in  general,  but  further 
time  may  be  allowed  in  any  case,  by  the  court  or  judge,  in  vaca- 
tion. Answers  to  interrogatories  may  be  enforced  by  nonsuit, 
judgment  by  default,  or  by  attachment,  as  the  justice  of  the  case 
may  require.  On  the  trial,  such  an  answer  may  be  used  as  evidence 
by  either  party." 

This  provision  introduces  the  practice  of  seeking  discovery  in 
actions  at  law,  as  well  as  in  suits  in  equity.  The  code  at  first  ig- 
nored altogether  the  law  of  discovery,  and  substituted  for  it  the 
examination  of  a  party  as  a  witness.  These  answers  to  interroga- 
tories are  substituted  for  a  deposition  when  this  course  has  been 
pursued.  It  declares  that  on  the  trial  such  answer  may  be  used 
as  evidence  by  either  party.  If  this  means  that  the  party  answer- 
ing can  use  it  as  evidence,  even  to  matters  in  his  favor,  which 
would  not  be  competent  if  inserted  in  a  deposition  or  given  orally, 
then  no  prudent  counsel  would  advise  the  filing  of  interrogatories, 
and  it  would  only  be  setting  a  trap,  to  be  sprung  by  his  adversary 
against  himself.  The  act  of  17  and  18  Vict.,  c.  125,  provides  that 
a  party  may  deliver  "interrogatories  in  writing  upon  any  matter 
as  to  which  discovery  may  be  sought."  Lord  Campbell,  C.  J.,  in 
Whateley  v.  Crowter,  5  E.  &  B.  709 ;  S.  O,  85  Eng.  Com.  Law, 
709,  uses  the  following  language  in  reference  to  this  matter :  "  What 
is  the  interpretation  to  be  put  upon  that  ?  I  think  it  is  too  wide 
an  interpretation  to  say,  as  seems  to  have  been  said  by  Alderson, 
B.,  in  the  case  cited  in  the  Exchequer  (Osborne  v.  London  Dock 
Co.,  10  Exch.  G98,  702),  that  every  question  may  be  asked  on  inter- 
rogatories which  might  be  asked  if  the  party  was  a  witness  at  the 
trial.  I  think  the  interrogatories  must  be  confined  to  matters 
which  might  be  discovered  by  a  bill  of  discovery  in  equity.  I 
adopt  the  rule  in  the  very  terms  used  by  Sir  James  Wigram  (Wig- 


REPLY.  269 

ram  on  Discovery,  261),  '  That  the  right  of  a  plaintiff  in  equity  to 
the  benefit  of  the  defendant's  oath  is  limited  to  a  discovery  of  such 
material  facts  as  relate  to  the  plaintiff's  case,  and  does  not  extend 
to  a  discovery  of  the  manner  in  which  the  defendant's  case  is  to  be 
established,  or  to  evidence  which  relates  exclusively  to  his  case.' 
You  may  inquire  into  all  that  is  material  to  your  own  case,  though 
it  should  be  in  common  with  that  of  your  adversary;  but  you 
may  not  inquire  into  what  is  exclusively  his  case."  There  are 
some  other  cases  under  the  English  act  which  illustrate  the 
kind  of  questions  which  may  be  asked,  flew  v.  Hutchins,  10 
C.  B.  (N.  S.)  829;  Zychlinski  v.  Maltby,  10  C.  B.  (N.S.)  838; 
Teysling  v.  Ward,  6  Hurlst.  &  N.  749  ;  May  v.  Hawkins,  11  Exch. 
510;  Chester  v.  Wortley,  17  C.  B.  410;  S.  C,  84  Eng.  C.  L.  410; 
Hollingham  v.  Head,  4  C.  B.  (N.  S.),  388;  S.  C,  93  Eng.  C.  L. 
388;  Bird  v.  Malzy,  1  C.  B.  (N.  S.),  308;  S.  C,  87  Eng.  C.  L. 
308.  The  English  rule  is  the  reasonable  one — that  the  party  is 
confined  to  his  own  case,  and  has  no  right  to  interrogate  the  op- 
posite party  as  to  what  his  own  case  will  be,  when  he  may  choose 
to  present  it.  Such  a  construction  of  the  statute  would  lead  to 
great  abuses.  Parties  would  be  inquiring  as  to  the  evidence  of  the 
opposite  party,  in  order  that  he  might  obviate  the  effect  of  it.  when 
it  should  be  presented.  Each  party  is  to  propound  his  interroga- 
tories when  he  files  his  pleading :  the  plaintiff,  with  his  petition  or 
reply;  the  defendant,  with  his  answer.  The  case,  as  it  stands 
when  the  interrogatories  are  filed,  is  the  case  pertinent  to  which 
the  discovery  is  sought.  No  evidence  is  pertinent  to  the  case  on 
filing  the  petition  but  the  case  made  in  the  petition — but  evidence 
supporting  the  case  of  the  plaintiff.  When  the  defendant  files  his 
answer,  then  the  pertinency  of  the  interrogatories  will  depend 
upon  the  nature  of  the  answer,  and  interrogatories  may  be  pre- 
sented on  the  issue  or  issues  then  made.  If  it  is  a  general  de- 
nial, the  discovery  may  bo  of  evidence  tending  to  disprove  the  case 
of  the  plaintiff  and  supporting  the  denial  of  the  defendant,  If 
new  matter  is  set  up,  and  a  general  or  special  denial  is  interposed, 
then  the  discovery  is  limited  to  the  support  of  the  case  made  by 
the  new  matter  set  up  in  the  answer.  So,  on  filing  the  reply,  the 
plaintiff  may  interrogate  the  defendant  as  to  the  case  as  presented 
in  the  answer  and  reply.  The  plaintiff  can  not,  in  his  reply,  file 
interrogatories  relating  to  his  own  case,  us  made  in  the  petition. 
The  interrogatories  are  to  be  filed  with  each  pleading,  and  are  to 
be  pertinent  to  the  case  then  presented  ;  hence  the  discovery  sought 
for  by  interrogatories  filed  with  the  reply  must  bo  limited  to  evi- 


270  VERIFICATION   OP   PLEADINGS. 


denco  presented  on  the  new  issues  made  in  the  answer  and  reply. 
The  answers,  too,  are  to  be  filed  on  filing  the  next  pleading,  which 
shows  that  each  set  of  interrogatories  must  be  limited  to  the  case 
made  by  the  previous  pleading.  There  can  be  no  other  rule  which 
can  limit  the  discovery  to  matter  pertinent  to  the  case.  Before 
the  defendant  has  filed  his  answer,  no  one  can  tell  what  will  be 
pertinent  to  the  issue  he  may  make.  To  go  beyond  proof  of  the 
facts  set  forth  in  the  petition,  in  the  interrogatories  filed  with  the 
petition,  can  not  be  pertinent  to  the  case  at  that  time ;  and  the 
pertinency  of  the  interrogatories  must  be  settled  by  the  case  then 
presented  on  the  record.  This,  of  course,  confines  the  discovery 
to  the  case  then  presented.  Such  seems  to  be  the  reasonable  con- 
struction of  the  act,  and  the  practice  under  it.  This  section  was 
amended  last  winter  (70  Ohio  L.  54),  extending  it  to  corporations. 


CHAPTER  XIV. 


YEKIFICATION  OF  PLEADINGS. 

Sec  105.  Every  pleading  in  a  court  of  record  must  be  subscribed 
by  the  party  or  his  attorney. 

Sec.  106.  That  every  pleading  of  fact  must  be  verified  by  the 
affidavit  of  the  party,  his  agent  or  attorney.  When  a  corporation 
is  a  party,  the  verification  may  be  made  by  an  officer  thereof,  its 
agoit  or  attorney ;  and  when  the  State,  or  any  officer  thereof  in 
its  hehalf  is  a  party,  the  verification  may  be  made  by  any  person 
acquainted  with  the  facts,  the  attorney  prosecuting  or  defending 
the  action,  the  prosecuting  attorney,  or  attorney  -general.  A  plead- 
ing, verified  as  herein  required,  shall  not  be  used  against  a  party 
in  any  criminal  prosecution,  or  action  or  proceedings  for  a  penalty 
or  forfeiture,  as  proof  of  a  fact  admitted  or  alleged  in  such  plead- 
ing, and  such  verification  shall  not  make  other  or  greater  proof 
necessary  on  the  side  of  the  adverse  party. 


The  act  of  April  0,  1859  (56  Ohio  L.  240;  1  S.  &  C.  91,  sec.  22), 
modifies  this  provision  so  far  as  relates  to  suits  by  the  State.  It  is 
there  provided  (section  22  of  the  act  prescribing  the  duties  of  attor- 
ney-general) that  it  shall  not  be  necessary  to  verify  the  pleadings 
on  the  part  of  the  State,  or  officer  aforesaid,  in  any  such  action,  suit, 


VERIFICATION   OP  PLEADINGS.  271 


or  proceeding.  The  forepart  of  this  section  defines  what  is  meant 
by  the  words  officer  and  action,  suit,  or  proceeding — "no  undertak- 
ing or  security  shall  be  required  on  behalf  of  the  State,  or  any  offi- 
cer thereof,  in  the  prosecution  or  defense  of  any  action,  writ,  or 
proceeding  ;"  and  then  follows  what  is  quoted  above.  The  mean- 
ing of  the  whole  section  is,  that  in  no  action,  writ,  or  proceeding 
prosecuted  in  the  name  of  the  State  shall  it  be  necessary  to  verify 
the  pleadings,  nor  in  any  case  where  the  action,  writ,  or  proceeding 
is  in  the  name  of  an  officer  of  the  State  for  the  use  of  the  State. 
The  language  is  broad  enough  to  justify  a  construction  that  no  offi- 
cer of  the  State  need  verify  his  pleading  in  a  private  case  of  his 
own.  The  legislature  could  never  have  intended  such  an  absurd- 
ity, and  hence,  as  the  act  relates  to  public  business,  it  may  be  rea- 
sonably construed  to  relate  only  to  that ;  and  hence  that  the  word 
"  officer  "  is  restricted  to  cases  where  he  sues  or  defends  for  the  State 
in  his  official  capacity.  It  therefore  relates  to  any  officer,  and 
hence  may  reach  cases  where  a  supervisor  sues  for  a  penalty  under 
the  road  law,  and  to  many  other  cases  when  an  officer  is  authorized 
to  sue  on  a  public  matter. 

When  a  corporation  is  a  party,  the  verification  may  be  made  by 
an  officer  thereof,  its  agent  or  attorney. 

When  the  State,  or  any  officer  thereof  in  its  behalf,  is  a  party, 
the  verification  may  be  made  by  any  person  acquainted  with  the 
facts ;  the  attorney  prosecuting  or  defending  the  action,  the  prose- 
cuting attorney,  or  the  attorney -general. 

A  pleading  thus  verified  shall  not  be  used  against  a  party  in  any 
criminal  prosecution,  or  action,  or  proceeding  for  a  penalty  or  for- 
feiture, as  proof  of  a  fact  admitted  or  alleged  in  such  pleading. 

Such  verification  shall  not  make  other  or  greater  proof  neces- 
sary on  the  side  of  the  adverse  party. 

When  not  to  be  verified. 

No  verification  shall  be  required  to  the  answer  of  a  guardian 
defending  for  an  infant,  or  person  of  unsound  mind,  or  a  person 
imprisoned. 

Nor  in  any  case  where  the  admission  of  the  truth  of  a  fact  stated 
in  the  pleading  might  subject  the  party  to  a  criminal  or  penal  pros- 
ecution.    Springstead  v.  Eobinson,  8  Pr.  41. 

Mow  to  be  verified. 

If  there  are  several  persons  united  in  interest  and  pleading  to- 
gether, the  affidavit  may  be  made  by  any  ono  of  such  parties. 


272  VERIFICATION    OF   PLEADINGS. 

The  affidavit  is  sufficient,  if  it  state  that  the  affiant  believes  the 
facts  stated  in  the  pleading  to  he  true. 

Note. — The  verification  is  no  part  of  the  pleading.  George  v. 
McAvoy,  1  Code,  N.  S.  318. 

Where  the  several  parties  to  a  hill  or  note  are  sued  in  one  action, 
and  they  make  a  joint  answer,  it  must  be  verified  by  or  on  behalf 
of  each  defendant.     Alfred  v.  Watkins,  1  Code,  N.  S.  343. 

A  defect  in  verification  must  be  taken  advantage  of  by  motion 
to  set  aside  the  pleading  for  irregularity.  Webb  v.  Clark,  2  Code, 
16  ;  Gilmore  v.  Hempstead,  4  Pr.  153. 

Where  the  verification  is  made  by  attorney  instead  of  the  party, 
the  reasons  must  be  stated  why  it  is  not  made  by  the  party.  Fitch 
v.  Bigelow,  5  Pr.  237. 

Where  the  defense  is  not  founded  upon  a  written  instrument, 
for  the  payment  of  money  only,  in  the  possession  of  the  attorney, 
he  must  have  personal  knowledge  of  all  the  material  allegations  of 
the  answer,  to  enable  him  to  verify  it.    Hunt  v.  Meacham,  6  Pr.  400. 

Wlien  Affidavit  may  be  made  by  Attorney. 

Sec.  113.  The  affidavit,  when  made  by  the  agent  or  attorney  of 
the  party,  must  show  the  reason  why  not  made  by  the  party,  and 
it  can  be  so  made  only  in  the  following  cases  : 

1.  When  the  facts  are  within  the  personal  knowledge  of  the 
agent  or  attorney. 

2.  When  the  plaintiff  is  an  infant,  or  of  unsound  mind,  or  im- 
prisoned. 

3.  When  the  pleading  to  be  verified  is  founded  upon  a  written 
instrument  for  the  payment  of  money  only,  and  such  instrument 
is  in  the  possession  of  the  agent  or  attorney. 

4.  That  the  part}?'  is  not  a  resident  of  the  county. 

5.  That  the  party  is  now  absent  from  the  county. 

Note. — A  party  may  deny  an  averment  if  he  has  no  knowledge 
of  its  truth.     Treadwell  v.  Comm'rs,  11  Ohio  St.  183. 

Forms  of  Verification. 

AFFIDAVIT   TO    A   PETITION. 

And  the  said  A  B  (or,  one  of  the  plaintiffs),  in  the  aforesaid 
action,  being  first  duly  sworn,  deposeth  and  saith  that  the  several 
matters  and  things  set  forth  in  the  above  petition  are,  according  to 
the  best  of  his  knowledge,  information,  and  belief,  true  in  substance 
and  in  fact.  jj  t> 

Subscribed  in  my  presence,  and  sworn  to  before  me,  this 
day  of  ,  a.  d.  18    . 


VERIFICATION   OF   PLEADINGS.  273 

AFFIDAVIT   BY   NEXT   FRIEND. 

And  the  said  E  F,  the  next  friend  of  the  said  A  B,  plaintiff  in 
the  aforesaid  action,  being,  etc.  (as  in  the  last.) 

WHERE   A   CORPORATION   IS   A   PARTY. 

A  B,  being  first  duly  sworn,  deposeth  and  saith  that  he  is  the 
president  (or  cashier,  or  director,  or  agent,  etc.)  of  the  said  , 

plaintiff  in  the  aforesaid  action,  and  that  the  several  matters  and 
things  set  forth  in  said  petition  are,  according  to  the  best  of  his 
knowledge,  information,  and  belief,  true  in  substance  and  in  fact; 
and  further  he  saith  not.  *    tj 

Subscribed  in  my  presence,  and  sworn  to  before  me  this 
day  of  ,  a.  d.  18     . 

WHERE   STATE   IS   A  PARTY. 

A  B,  being  first  duly  sworn,  deposeth  and  saith  that  he  is  per- 
sonally acquainted  with  the  facts  stated  in  said  petition,  wherein 
the  said  State  of  Ohio  is  plaintiff,  and  ,  defendant,  and  that 

the  same  are,  according  to  the  best  of  his  knowledge,  information, 
and  belief,  true  in  substance  and  fact ;  and  further  he  saith  not. 

Note. — Where  made  by  attorney,  the  affidavit  must  state  the 
fact ;  otherwise  it  will  be  like  the  above. 

BY    AGENT   OR   ATTORNEY. 

A  B,  being  first  duly  sworn,  deposeth  and  saith,  that  he  is  the 
attorney  of  record  (or  agent)  of  the  said  ,  plaintiff  in  the 

aforesaid  action,  and*  that  the  facts  set  forth  in  said  petition  are 
within  his  own  personal  knowledge  ; 

\_Or,  that  the  said  plaintiff  is  an  infant ; 

Or,  that  the  said  plaintiff  is  of  unsound  mind  ; 

Or,  that  the  said  plaintiff  is  imprisoned  ; 

Or,  that  the  said  petition  is  founded  on  a  written  instrument  for 
the  payment  of  money  only,  and  that  such  written  instrument  is 
in  the  possession  of  this  affiant,  as  the  attorney  of  said  plaintiff; 

Or,  that  the  said  plaintiff  is  not  a  resident  of  said  county 
of  ;* 

Or,  that  the  said  plaint  ill'  is  now  absent  from  the  said  county 

of        _] 

•The  agent  <>r  attorney  is  permitted  to  make  the  affidavit  when  the  plaintiff 
is  a  son-resident  of  the  county. 
VOL.  I — 18 


274  VERIFICATION    OF    PLEADINGS. 


And  this  affiant  farther  saith,  that  the  several  matters  and 
things  .contained  in  said  petition  are,  according,  to  the  best  of  his 
knowledge,  information,  and  helief,  true  in  substance  and  in  fact; 
and  further  he  saith  not. 

Note. — The  various  grounds  which  justify  an  attorney  in  mak- 
ing an  affidavit  are  stated  one  after  the  other.  Copy  the  affidavit 
to  the  *j  then  insert  one  of  the  causes  stated,  and  conclude  with 
what  follows  after  the  brackets. 

AFFIDAVIT   TO   ANSWER. 

The  said  C  D,  defendant  in  the  above  action,  being  first  duly 

sworn,  deposeth  and  saith,  that  the  several  matters  and  things 

contained  in  the  foregoing  answer  are,  according  to  the  best  of  his 

knowledge,  information  and  belief,  true  in  substance  and  in  fact ; 

and  further  he  says  not. 

CD. 

Signed  in  my  presence,  and  sworn  to  before  me,  this  day 
of  ,  a.  d.  18     . 

Note.' — The  other  affidavits  to  answers  are  substantially  the 
same  as  to  the  petition,  with  the  exception  of  substituting  the 
word  defendant  for  plaintiff,  and  the  word  answer  for  petition.  In 
verification  of  a  reply  to  set-off  or  counter-claim  the^same  change 
can  be  made ;  the  only  further  change  being  to  substitute  reply  for 
petition,  the  party  still  being  the  plaintiff. 

Before  whom  Sworn. 

It  may  be  sworn  to  before  any  person  authorized  to  take  deposi- 
tions. Still  he  must  not  be  a  party  to  the  suit,  nor  the  attorney  of 
the  party.  Gilmore  v.  Hempstead,  4  Pr.  153 ;  12  Johns.  339  ;  3  Term 
403;  2  Paige  Ch.  326;  5  Paige  Ch.  530;  15  Johns.  531;  17  lb.  2; 
6  Cowen,  587. 

Depositions  may  be  taken  before  a  judge  or  clerk  of  the  Supreme- 
Court,  a  judge  or  clerk  of  the  Court  of  Common  Pleas,  or  a  judge 
of  the  Probate  Court ;  before  a  justice  of  the  peace,  notary  public, 
mayor,  or  chief  magistrate  of  any  city  or  town  corporate,  or  before 
a  master  commissioner ;  and  hence  these  affidavits  may  be  sworn 
to  before  any  of  these  officers. 

The  officer  must  state  his  official  character ;  and  if  he  does,  no 
other  evidence  of  that  fact  is  required,  nor  of  his  handwriting  to 
the  affidavit.    His  certificate  proves  itself. 


VERIFICATION   OP    PLEADINGS.  275 


Defects  in  Affidavits — What  and  how  taken  Advantage  of. 

The  code  seems  to  require  that  the  certificate  shall  contain  a 
statement  that  the  party  signed  it  in  his  presence  and  swore  to  it 
before  him:  and  the  above  forms  have  been  framed  on  this  con- 
struction. In  some  districts  the  following  form  has  been  held  suf- 
ficient, and  in  others  not  sufficient :  Sworn  to  and  subscribed  before 
me,  or  subscribed  and  sworn  to  before  me.  It  is  easy  to  follow  the 
language  of  the  code,  and  there  is  no  sufficient  reason  why  a  loose 
practice  should  be  tolerated,  which  is  a  seeming  departure  from 
the  code. 

A  defective  jurat  or  affidavit  may  be  taken  advantage  of  by  a 
motion  to  strike  out  the  pleading  which  is  not  properly  verified. 
When  the  pleading  is  stricken  out  for  the  want  of  a  proper  affida- 
vit to  the  petition,  it  may  be  amended  by  adding  a  proper  jurat  or 
affidavit,  and  the  case  proceed  as  though  the  petition  was  properly 
sworn  to  before  being  originally  filed.  The  suggestion  in  the  first 
edition  has  been  overruled  by  the  courts  generally,  and  the  above 
practice  adopted.  It  matters  little  which  course  is  pursued,  so  the 
practice  is  understood.  Where  the  pleading  was  properly  sworn 
to,  but  the  form  of  the  jurat  is  defective,  it  was  always  susceptible 
of  amendments;  the  only  difficulty  was  where  no  jurat  was  at- 
tached to  the  petition.  In  such  a  case  the  clerk  ought  not  to  have 
issued  any  summons ;  it  was,  therefore,  originally  decided  that, 
seeing  there  never  was  a  proper  petition  filed,  the  summons  was 
improperly  issued,  and  hence  there  was  no  case  in  court.  This 
would  seem  to  be  the  logic  of  the  question  ;  but  courts  have  ruled 
otherwise,  whereby  an  attorney  by  filing  a  petition  without  a  veri- 
fication to  obtain  a  service,  when  not  being  able  then  to  obtain  the 
necessary  verification,  he  obtains  a  service,  which  binds  the  party 
to  answer  a  case  which  was  improperly  commenced.  By  this  sort 
of  trick  a  service  may  be  obtained  on  a  non-resident  of  the  state  or 
county,  which  could  not  have  been  done  had  the  plaintiff  been  re- 
quired to  verify  his  petition  before  filing  it.  For  this  reason  the 
plaintiff  may  file  his  petition  for  the  very  purpose  of  obtaining  a 
service,  adding  his  affidavit  at  his  leisure.  Where  it  is  done  for 
that  purpose,  I  have  no  doubt  that  the  court,  on  motion,  would  set 
aside  the  service  as  an  abuse  of  the  process  of  the  court.  This 
question  is  discussed  under  the  chapter  on  service,  and  may  be 
referred  to  for  explanation  of  the  abuse  of  the  process  of  the 
court. 


276  VERIFICATION   OP   PLEADINGS. 

MOTION   TO   STRIKE   PETITION   FROM    FILE    FOR  WANT   OF   A  JURAT. 

vs       J  County,  ss. 

p  ^      f  Court  of  Common  Pleas. 

And  now  comes  the  said  A  B,  plaintiff,  by  C  D,  his  attorney,  and 
moves  the  court  here  to  strike  from  the  file  of  this  case  the  petition 
filed  therein,  for  the  following  reasons,  to  wit : 

1.  There  is  no  sufficient  jurat  attached  to  said  petition. 

2.  There  is  no  jurat  attached  to  said  petition. 

C  D,  Attorney  for  Defendant. 

The  same  form  will  meet  the  case  of  an  answer  or  reply,  in  case 
there  is  no  sufficient  jurat  attached  to  the  answer  or  reply,  by 
changing  the  word  "petition  "  to  "  answer"  or  "  reply,"  as  the  case 
may  be. 

If  the  party  finds  that  the  objection  is  well  taken,  he  should  ask 
leave  to  amend  by  adding  the  necessary  affidavit  to  the  pleading. 
When  that  is  done,  the  motion  must  be  overruled,  because,  when 
once  the  motion  is  sustained  and  the  pleading  is  stricken  out,  it 
must  be  sworn  to  and  refiled.  In  the  case  of  a  petition,  it  would 
seem,  if  stricken  out,  the  case  was  out  of  court,  and  no  new  suit 
can  be  instituted  by  the  mere  filing  of  a  petition.  But  if  the 
amendment  is  first  made,  and  the  motion  -overruled,  then  there 
will  still  remain  a  case  in  court.  This  is,  therefore,  the  better 
practice.  Answers  or  replies  can  be  stricken  out  without  chang- 
ing the  status  of  the  case;  but  this  is  not  so  with  the  petition.  A 
petition  is  the  foundation  of  all  that  follows,  and  the  foundation 
gone,  it  would  logically  follow  that  all  resting  upon  it  must  fall 
along  with  it,  and  a  new  start  have  to  be  made. 


TIME   TO   ANSWER.  277 


CHAPTER  XV. 


TIME  TO  ANSWER. 


I.  When  the  Answer  and  Reply  shall  be  Filed. 

Sec.  103.  The  answer  or  demurrer  of  the  defendant  must  be  filed 
on  or  before  the  third  Saturday,  and  the  reply  or  demurrer  of  the 
plaintiff  on  or  before  the  fifth  Saturday  after  the  return-day  of  the 
summons  or  service  by  publication. 

The  service  by  publication  is  completed  on  the  day  of  the  last 
publication  of  the  notice ;  hence  the  defendant  is  bound  to  answer 
on  the  third  Saturday  next  after  the  day  of  the  last  publication  of 
the  notice. 


Extension  of  Time  to  Answer  or  Reply. 
Sec.  104.  The  court,  or  a  judge  thereof,  in  vacation,  for  good 
cause  shown,  may  extend  the  time  for  filing  an  answer  or  a  reply, 
upon  such  terms  as  may  be  just. 


This  power  of  extending  time  to  answer  ought  not  to  be  exer- 
cised without  notice,  where  it  will  operate  as  a  continuance  of  the 
cause.  Where  there  will  still  be  time  to  prepare  the  case  for  trial 
after  the  expiration  of  the  extended  time,  there  can  be  little  objec- 
tion in  granting  the  order  almost  of  course.  The  unexpected  ab- 
sence of  a  party  or  counsel  at  the  time  when  the  answer  must  be 
filed,  would  be  good  ground  for  extending  the  time.  So  where  a 
party  can  not  answer  without  certain  papers,  which  can  not  yet  be 
obtained,  an  extension  should  be  granted. 

This  extension  can  be  granted  in  court,  or  by  a  judge  out  of 
court.  When  granted  in  court,  the  order  must  be  entered  on  the 
journal  of  the  court.  While  the  court  is  in  session,  no  order  can 
be  granted  by  a  judge  out  of  court.  So  when  one  judge  was  au- 
thorized to  take  bail  in  vacation,  it  was  held  that  a  bail-bond  taken 
by  a  single  judge  during  term  was  void.  Sargeant  v.  The  Stale, 
16  Ohio,  267. 


278  TIME   TO    ANSWER. 


FORM    OP   ORDER. 


A  B,  plaintiff,  ~) 

vs.  [  Petition. 

C  D,  defendant, ) 

On  motion  of  the  said  C  D,by  E  P,  bis  attorney,  and  upon  good 
cause  therefor  being  shown,  it  is  ordered  that  the  time  for  the  said 
C  D  to  answer  the  petition  of  the  said  A  B  (or,  to  reply,  as  the  case 
is)  be  extended  until  the        day  of  next. 


ORDER   IN   VACATION. 

A  B,  plaintiff,  j  Cmnty^  ss 

C  D,  defendant,  j    Court  of  Common  P1eas. 

On  application  made  to  the  undersigned,  one  of  the  judges  of  the 
said  Court  of  Common  Pleas,  by  the  said  C  D,  and  upon  good  cause 
therefor  being  shown,  it  is  ordered  that  the  time  for  the  said  C  D 
to  answer  the  petition  of  the  said  A  B,  be  extended  until  the 
day  of  next. 

Given  under  my  hand  this  day  of  ,  a.  d.  18     . 

S  N,  Judge  of  said  Court. 


II.  Answer  after  a  Default. 

The  question  is  sometimes  raised  as  to  when  a  party  is  in  default. 
There  can  not  be  any  doubt  usually,  where  no  answer  or  reply  has 
been  filed.  There  are  certain  cases  where  a  party  is  not  bound  to 
answer  until  he  has  obtained  something  from  the  opposite  party. 
But  there  is  a  class  of  cases  where  this  question  arises  and  as  to 
which  I  believe  there  is  a  conflict  of  opinion.  It  arises  where  an 
answer  or  reply  has  been  filed,  and  the  opposite  party  has  obtained 
leave  to  amend,  and  has  amended  the  petition  or  answer.  Is  the 
opposite  party  in  default  if  he  does  not  file  a  new  answer?  There 
are  cases  where  the  new  matter  inserted  may  require  an  answer  as  not 
being  covered  by  the  answer  already  filed.  But  that  is  a  question 
for  the  pleader  to  consider ;  it  has  nothing  to  do  with  the  question 
whether  there  is  a  default.  The  practice  with  some  judges  has 
been  one  way,  and  with  other  judges  the  other.  I  know  of  no 
Ohio  case  having  any  reference  to  this  question.  But  in  the  ease 
of  Stevens  v.  Thompson,  5  Kansas,  305,  the  question  is  considered 
and  decided.     Kingman,  C.  J.,  delivers  the  opinion  of  the  court. 

"In  the  old  chancery  practice,"  he  says,  "the  rule  was  that  when 
a  complainant  amended  his  bill  after  answer,  it  was  the  right  of  the 


TIME   TO   ANSWER.  279 


defendant  to  put  in  a  new  or  further  answer  to  the  amended  bill, 
except  where  the  amendment  was  a  mere  matter  of  form,  which 
could  not  vary  the  rights  of  the  defendant.  But  in  the  answer  to 
the  amended  bill,  it  was  not  allowable  to  repeat  the  allegations  of 
the  former  answer,  unless  the  grounds  of  the  suits  and  the  defense 
to  the  same  were  waived  in  substance.  Bowen  v.  Idley,  6  Paige, 
48.  But  while  this  was  the  right  of  the  defendant,  he  was  at 
liberty,  unless  specially  required  to  answer  to  some  new  charge  in 
the  bill,  to  let  his  first  answer  remain  as  putting  in  issue  all  the 
matters  properly  raised  by  it.  At  common  law  it  seems  a  similar 
practice  prevailed.  Tidd's  Pr.  708  and  note  E,  and  6  Taunton,  673. 
Therein  it  was  held  that  an  amendment  does  not  necessarily  entitle 
the  defendant  to  plead  de  novo,  but  only  when  the  amendment  alters 
the  state  of  the  defendant's  cause. 

"  Now,  the  code  of  civil  procedure  is  much  more  liberal  in  permit- 
ting amendments,  and  making  the  precision  and  technicalities  of  the 
rules  of  pleading  yield  to  the  great  object  of  assisting  the  parties 
in  obtaining  justice,  than  was  the  common  law.  It  permits  amend- 
ments to  be  made  to  the  pleadings  during  the  tidal ;  and  even  after 
trial  and  judgment  the  court  may  amend  by  adding  or  striking  out 
the  name  of  a  party  to  make  the  pleadings  conform  to  the  proof; 
in  this  case,  the  amendment  was  adding  the  name  of  a  party  only. 
The  answer  of  plaintiff  in  error,  when  it  was  filed,  put  in  issue 
every  fact  in  the  plaintiff's  pleading,  original  and  amended,  saving 
perhaps  the  simple  one  that  Schmall  was  a  member  of  the  firm  of  H. 
M.  Thompson  &  Co.,  and  a  necessary  party  in  interest  in  the  action. 

"How,  then,  can  he  be  said  to  be  in  default?  He  had  appeared 
in  the  action  ;  had  filed  an  answer  controverting  such  of  the  state- 
ments of  the  plaintiff's  petition  as  he  deemed  essential.  The  re- 
statement of  the  facts,  in  the  amended  petition,  did  not  change  the 
grounds  of  the  action. 

"Whatever  of  the  original  petition  or  the  amendment  is  not  con- 
troverted, must  be  taken  as  true,  and  need  not  be  proven.  But  all 
the  statements,  in  both  of  the  petitions,  save  one,  were  denied,  and 
BO  the  ease  stood  upon  the  record,  when  the  cause  was  tried.  As 
we  understand  the  code,  this  made  it  incumbent  on  the  plaintiffs  to 
make  out  their  case  by  evidence.  The  jury  were  instructed  that 
the  only  question  for  them  to  consider,  was  the  value  of  the  goods 
when  delivered.  This  was  the  Law  of  the  ease,  if  the  plaintiff  in 
error  was  in  defaull  ;  bul  as  we  have  seen  that  such  was  not  the 
condition  of  the  case,  the  instruction  was  erroneous,  and  for  that 
reason  the  judgment  musl  be  reversed."     This  decision  settles  the 


280  TIME   TO    ANSWER. 


rule  correctly,  and  should  be  everywhere  followed.  The  old  rule 
in  such  a  case,  that  the  defendant,  after  an  amendment  by  the 
plaintiff,  had  a  choice  of  one  of  two  things :  he  could  put  in  a  new 
plea,  or  he  would  abide  by  his  former  plea ;  and  a  failure  to  file 
any  other  plea,  was  an  election  to  abide  by  the  one  already  on  file. 
There  could  be  no  default  with  a  plea  or  answer  already  on  file ; 
the  plea  or  answer  was  good  for  whatever  it  would  put  in  issue  on 
the  petition  as  amended.  It  was  treated  just  the  same  as  though 
the  old  answer  or  plea  had  been  replied  to  the  amended  declaration 
or  bill.  So  now,  if  the  defendant  thinks  his  answer  on  file  meets 
and  raises  all  the  questions  he  wishes  to  raise  on  the  amended 
petition,  he  will  allow  his  former  answer  to  remain,  and  he  will 
rely  upon  it,  and  try  all  the  issues  raised  by  it.  Of  course,  the 
pleader  must  be  sure  his  answer  covers  all  of  the  new  petition  he 
wants  it  to  cover,  or  he  must  file  a  new  one.  His  answer  will  be 
treated  just  as  though  it  had  been  filed  to  the  amended  petition,  and 
cover  no  more  than  a  new  answer  in  the  same  words  would  cover, 
if  filed  after  the  amendment  had  been  made.  It  is  useless  to  stuff 
the  record  with  useless  matter,  since  our  clerks  are  in  the  habit  of 
inserting  both  the  original  and  amended  pleading,  even  if  the 
amendment  has  been  made  by  rewriting  the  prior  petition  and  in- 
corporating the  new  matter  in  it,  or  leaving  out  matter  which  was 
redundant  or  improper. 

Where  a  defendant  omits  to  answer  within  the  time  prescribed, 
the  court  has  power  to  let  the  defendant  in  to  make  a  defense. 
Lynd  v.  Verity,  1  Code,  97;  Allen  v.  Ackley,  4  Pr.  5. 

Will  the  court  limit  the  defendant. in  what  defense  he  shall  make 
on  setting  aside  a  judgment  by  default  ?  We  think  not.  The  code 
now  requires  all  pleadings  to  be  sworn  to,  and  defaults  should 
therefore  be  set  aside  as  of  course,  the  party  being  simply  required 
to  answer  immediately,  so  that  the  plaintiff  will  suffer  no  delay. 
In  Grant  v.  McCaughin  et  al.,  4  Pr.  216,  Parker,  J.,  refused  to  im- 
pose any  condition  as  to  the  nature  of  the  defense.  He  said  so 
long  as  the  statute  made  the  taking  of  usury  a  defense,  it  was  en- 
titled to  be  treated  like  every  other  legal  defense,  and  he  would 
make  no  discrimination  in  imposing  terms.  In  Ward  v.  Wood,  10 
West.  L.  Journal,  505,  it  was  held  that  the  statute  of  limitations 
could  be  pleaded  after  a  default.  Mr.  Justice  Nash,  in  his  opinion,  re- 
views all  the  cases,  and  comes  to  the  conclusion  that,  until  the  dicta 
in  Ohio,  there  was  not  any  such  rule,  and  for  a  court  to  establish 
such  an  one  is  an  act  inconsistent  with  the  plainest  principles  of 
law — is  to  administer  a  moral  instead  of  a  legal  code.     The  same 


TIME   TO    ANSWER.  281 


doctrine  is  found  asserted  in  Eucker  v.  Hanny,  3  Term,  124 ;  Ham 
v.  Goodwin,  1  Brevard,  461 ;  6  N.  H.  124,  235. 

There  is  now  no  necessity  for  an  affidavit  of  a  meritorious  de- 
fense, since  the  defendant  can  interpose  no  defense  to  the  truth  of 
which  he  does  not  pledge  his  oath.  A  default,  therefore,  should 
be  set  aside  as  of  course,  and  the  defendant  be  permitted  to  answer 
instanter.     This  condition  is  necessary  to  prevent  delays. 

How  Pleadings  are  to  be  Regarded. 

Every  material  allegation  of  the  petition  not  controverted  by  the 
answer,  and  every  material  allegation  of  new  matter  in  the  answer 
not  controverted  by  the  reply,  are  to  be  taken  as  true,  or  admitted  ; 
but  new  matter  in  a  reply  is  to  be  taken  as  controverted  without  a 
rejoinder,  as  upon  a  direct  denial,  or  avoidance.  A  court  then  has 
only  to  ascertain  what  is  asserted  on  the  one  side  and  denied  on 
the  other,  to  know  what  is  in  dispute,  and  necessary  to  be  proved ; 
all  else,  so  far  as  the  petition  and  answer  are  concerned,  is  admit- 
ted ;  the  new  matter  in  the  reply  is  alone  to  be  proved  without  a 
denial. 

A  material  allegation  in  a  pleading  is  one  essential  to  the  claim 
or  defense,  and  which  could  not  be  stricken  out  without  leaving  it 
insufficient. 

Only  those  allegations  in  a  complaint  are  to  be  deemed  material, 
in  the  sense  of  the  code,  which  the  plaintiff  must  prove  upon  the  trial 
in  order  to  maintain  his  action.  It  is  upon  these  only  that  an  issue 
can  properly  be  taken ;  and  it  is  of  these  only  that  the  truth  is 
admitted  by  the  omission  in  the  answer  of  a  specific  denial.  Per 
Duer,  J.,  in  Fry  v.  Bennett,  1  Code,  N.  S.  245;  Newman  v.  Otto, 
4  Sand.  S.  C.  668 ;  Harcourt  v.  Hamilton,  6  Pr.  475. 

These  admissions  can  not  operate  as  estoppels.  They  conclude 
the  party  only  in  that  case.  Estoppels  must  be  found  by  a  jury  or 
be  specifically  admitted  on  the  record.  Outram  v.  Morewood,  3 
East,  353  ;  Manny  v.  Harris,  2  Johns.  24;  Eymer  v.  Atwater,  4  Day, 
431  :  Whittemorc  v.Shaw,  8N.  H.  393;  Arnold  v.  Arnold,  17  Pick.  9; 
Dame  r.  Wingate,  12  K  H.  291 ;  vide  also  2  Pick.  20;  3  Pick.  288; 
18  Pick.  564;  8  Blackf.  175;  4  Gill.  &  Johns.  345;  4  Conn.  276; 
'J.  Barr.  (Pa.)  492.  These  cases  show  that  there  can  be  no  estoppel 
by  implication. 

Where  damages  or  the  mere  value  of  articles' are  alleged,  they 
are  QOl  admitted  by  an  omission  to  deny  them.  They  may  be 
denied,  but  they  need  qoI  be.  Tho  verification  of  a  pleading  does 
not  apply  to  the  amount  claimed,  except  in  actions  founded  on 


2S2  TIME    TO    ANSWER. 


contracts,  express  or  implied,  for  the  payment  of  money  only. 
Hence,  unless  the  contract  is  such  that  a  breach  can  be  assigned 
in  the  mere  non-payment  of  money,  the  verification  does  not  relate 
to  it,  and  a  failure  to  deny  its  correctness  does  not  admit  it.  The 
amount  must  still  bo  proved  on  a  failure  to  answer. 

III.  Ansicer  or  Reply  after  a  Demurrer. 

Sec.  13C.  Upon  a  demurrer  being  overruled,  the  party  who  de- 
murred may  answer  or  reply,  if  the  court  is  satisfied  that  he  has 
a  meritorious  claim  or  defense,  and  did  not  demur  for  delay. 


It  will  be  seen  by  this  section  that  the  court  must  be  satisfied  of 
two  things  before  it  has  power  to  permit  an  answer  upon  overruling 
a  demurrer,  whether  to  the  petition  or  answer : 

1.  That  the  demurrant  has  a  meritorious  defense. 

2.  That  the  party  did  not  demur  for  delay. 

1.  What  then  is  a  meritorious  defense?  The  law  settles  what 
facts  constitute  a  defense,  and  any  defense  which  the  law  allows 
must,  therefore,  be  meritorious,  unless  courts  hold  that  the  law  allows 
defenses  wholly  destitute  of  merit — a  conclusion  which  will  hardly  be 
adopted  by  a  court  whose  duty  it  is  to  enforce  the  law.  A  defense 
which  depends  not  upon  the  real  dispute  between  the  parties,  but 
upon  some  mistake  in  preparing  the  case  or  the  pleadings,  is  not 
meritorious.  Hence  the  court  would  not  allow  one  to  answer  in 
order  to  set  up  a  variance,  an  informal  defect  in  the  pleadings,  or 
any  other  matter  aside  from  the  case  as  the  law  regards  it. 

In  order  to  protect  itself  and  parties  against  delay,  the  court 
should  require  the  answer  to  be  drawn  up  and  presented  to  the 
court,  on  the  motion  for  leave  to  answer  over.  The  court  will  then 
be  able  to  judge  of  the  character  of  the  defense,  and  whether  it 
ought  to  be  let  in  at  that  late  hour. 

2.  That  the  party  did  not  demur  for  delay.  "When  a  plainly  friv- 
olous demurrer  is  interposed,  for  the  purpose  of  rendering  a  con- 
tinuance necessary  on  leave  being  given  to  answer  over,  the  party 
ought  not  to  be  permitted  to  answer  over,  as  it  is  an  abuse  of  the 
practice  of  the  court.  Hence  a  demurrer  must  be  shown  to  pos- 
sess some  plausibility,  and  not  be  on  its  face  a  mere  pretense — a 
palpable  sham.  The  party  is  bound  to  present  his  real  defense  at 
the  earliest  moment  permitted  by  the  practice  of  the  court.  He 
can  not  be  permitted  to  file  pleadings  which  on  their  face  present 
no  legal  question,  as  a  mere  vexation  or  means  of  delay  ;  and,  if 
counsel  will  take  such  a  course  in  a  case,  their  clients  must  suffer 


SUPPLEMENTAL    PETITIONS   AND   ANSWERS.  283 

for  their  malpractice.  Neither  the  interests  of  parties  nor  the  ad- 
ministration of  justice  is  promoted  by  such  sharp  practice.  It  is 
generally  adopted  by  knavish  lawyers  to  increase  the  fees  to  be 
charged  in  a  case,  since  some  charge  according  to  the  number  of 
pleadings  filed  and  continuances  obtained. 

The  court  can  readily  judge  of  the  character  of  the  demurrer  ; 
and  if  it  appears  frivolous — such  a  one  as  no  fair  lawyer  could 
have  filed  with  any  expectation  that  there  was  any  real  question 
raised  by  it — the  com*t  should  hold  it  to  have  been  filed  for  delay, 
since  no  other  reason  can  be  given  for  filing  it,  and  no  further  an- 
swer or  reply  should  be  permitted,  save  in  a  case  where  it  is  per- 
fectly clear  that  the  client  has  a  good  defense,  and  is  being  sacrificed 
to  the  ignorance  or  knavery  of  his  lawyer. 


CHAPTER  XVI. 


SUPPLEMENTAL  PETITIONS  AND  ANSWEKS. 

Sec.  142.  Either  party  may  be  allowed  on  notice,  and  on  such 
terms  as  to  costs,  as  the  court  may  prescribe,  to  file  supplemental 
petition,  answer,  or  reply,  alleging  facts  material  to  the  case,  oc- 
curring after  the  former  petition,  answer,  or  reply. 


This  section  provides  a  supplemental  pleading  only  in  case  of 
facts  occurring  after  the  filing  of  the  former  pleading.  Matter 
which  existed  at  the  time  of  the  filing  of  the  original  pleading 
must  be  introduced  by  amendment.  Such  was  the  rule  in  chan- 
cery, with  a  limited  exception,  that  a  bill  could  not  be  amended 
after  issue  joined.  Under  the  code,  amendments  may  be  made  at 
any  time  before  judgment.  Story's  Eq.  PI.  G82,  269.  In  Drought 
v.  Curtis  et  al.,  8  Pr.  5G,  Gridley,  J.,  says  :  "  The  supplemental  an- 
swer under  the  code  is  a  substitute  for  the  old  plea  puis  darrein 
continuance;  but  it  differs  from  that  plea  in  this  respect,  that  the 
supplemental  answer  may  be  allowed  on  motion,  whenever  the  facts 
forming  the  ground  of  the  answer  have  occurred  since  the  answer 
whs  put  in.  whereas  the  plea  of  puis  darrein  continuance  could 
Btrictly  be  pleaded  only  before  or  al  the  next  continuance  after  the 
facts  transpired.     Where  the  facte  asked  to  be  incorporated  and 


284  SUPPLEMENTAL   PETITIONS   AND   ANSWERS. 

pleaded  in  a  supplemental  answer  go  to  divest  the  plaintiff  of  the 
rig-lit  to  maintain  the  action,  and  transfer  the  cause  to  another  who 
has  received  satisfaction  for  the  demand  involved  in  it,  it  is  the 
duty  of  the  court  to  grant  the  motion.  The  word  may  in  such  a 
case  means  must,  and  it  will  make  no  difference  whether  the  mo- 
tion be  made  at  the  earliest  day  or  not."  A  supplemental  com- 
plaint is  not  an  addition  to  the  original  complaint,  hut  has  the 
nature  of  another  original  complaint,  which  in  its  consequences 
may  draw  to  itself  the  advantage  of  the  proceedings  on  the  former 
complaint.  Per  Edmonds,  J.,  in  Furniss  v.  Brown,  N.  Y.  Code, 
1852,  p.  199,  note  ;  Hornfager  v.  Hornfager,  1  Code,  N.  S.  180 ; 
Eadley  v.  Houtaling,  4  Pr.  251. 

This  question  has  come  up  for  consideration  in  several  cases  de- 
cided since  the  first  edition  of  this  work.  The  first  case  to  which 
I  will  refer  is  that  of  Penman  v.  Slocum,  41  N.  Y.  53.  In  this  case 
a  petition  was  filed  to  obtain  a  declaration  of  trust  for  certain 
property,  a  part  of  the  purchase  money  not  being  paid.  After  suit 
brought,  this  money  was  paid,  and  a  supplemental  petition  was 
filed,  setting  up  that  fact,  and  claiming  a  share  of  it.  James,  J.,  in 
alluding  to  the  subject,  says  :  "A  supplemental  complaint  may  be 
resorted  to  where  facts  have  occurred  subsequent  to  the  commence- 
ment of  the  action,  which  vary  the  relief  to  which  the  plaintiff 
was  at  that  time  entitled.  I  think  it  may  be  said,  as  held  by  the 
referee,  that  at  the  time  this  action  was  commenced,  upon  the  facts 
as  proved,  the  plaintiff  was  entitled  to  a  judgment  declaring  his 
rights  in  the  premises.  If  so,  the  subsequent  payment  of  the 
whole  of  the  purchase  money  varied  the  relief  to  which  the 
plaintiff  was  entitled  when  the  action  was  brought,  and  presented 
a  proper  case  for  a  supplemental  complaint.  But  the  order  allow- 
ing a  supplemental  complaint  provided  that  if  the  referee  before 
whom  the  action  was  to  be  tried,  should  be  of  the  opinion  that 
plaintiff  was  not  entitled  to  any  relief  without  proof  that  defendant 
received  the  $70,000  mentioned  in  said  supplemental  complaint, 
that  then  said  referee  should  determine  the  question  of  the  legal 
effect  of  the  said  fact  not  having  occurred  before  suit  brought,  and 
should  give  such  judgment,  or  prescribe  such  terms  with  reference 
thereto,  as  should  be  agreeable  to  law  and  equity  and  the  rules  and 
practice  of  court.  This  order  was  not  appealed  from,  and  it  there- 
fore binds  and  controls  the  parties  in  the  proceedings  under  it.  It 
constituted  the  referee  an  arbitrator  of  the  questions  presented  by 
it,  whose  decision  was  final.  The  facts  established  by  the  referee 
outside  the   supplemental   complaint   entitled  the  plaintiff  to  a 


SUPPLEMENTAL   PETITIONS    AND   ANSWERS.  285 

judgment  defining  his  rights  under  the  agreement,  and  for  an  ac- 
count of  the  money  when  received ;  and  these  facts,  together  -with 
those  found  and  declared  under  authority  of  the  supplemental 
complaint,  entitle  plaintiff  to  further  judgment  for  the  amount 
received." 

The  nature  of  a  supplemental  petition  came  up  again  in  the  case 
of  Taylor  v.  Taylor,  43  N.  Y.  578,  586.  Church,  C.  J.,  says:  "A 
hill  of  revivor  merely  re-animated  the  suspending  controversy.  If 
new  interests  arose  after  the  commencement  of  the  action,  which 
made  it  necessary  or  proper  to  change  or  modify  the  original 
claim,  the  parties  necessary  for  this  purpose  were  brought  before 
the  court  by  an  original  bill  in  the  nature  of  a  supplemental  bill. 
Such  a  bill  is  properly  applicable,  when  new  parties  with  new  in- 
terests, arising  from  events  since  the  institution  of  the  suit,  are 
brought  before  the  court.  Story's  Eq.  PL,  sec.  345.  Such  a  bill 
must  show  the  grounds  upon  which  the  court  ought  to  grant  the 
benefit  of  a  former  suit,  to  or  against  the  person  who  has  become 
so  entitled,  and  it  must  pray  the  decree  of  the  court  adapted  to 
the  case  of  the  plaintiff  in  the  new  bill.    lb.,  sec.  353. 

"The  code  has  provided  for  supplemental  complaints  in  both 
classes  of  cases,  substantially  in  accordance  with  the  practice  in 
the  court  of  chancery.  Code,  sees.  121,  177 ;  41  N.  Y.  53.  It  is  a 
new  cause  of  action.    7  How.  Pr.  31 ;  14  lb.  71." 

This  section  was  again  under  consideration  in  the  case  of  Med- 
bury  v.  Swan,  46  N.  Y.  200.  Allen,  J.,  delivered  the  opinion  of 
the  court.  "  The  right  to  allege  new  matter  by  supplemental 
pleading,"  he  says,  "  is  not  an  absolute  and  positive  right,  but  is 
made  to  depend  upon  the  leave  of  the  court  in  the  exercise  of 
a  legal  discretion.  The  application  may  be  refused,  if  the  new 
defense,  although  strictly  legal,  is  inequitable,  or  if  the  applica- 
tion is  not  made  with  reasonable  diligence.  A  party  may  waive 
his  right  altogether,  or  lose  it  by  laches.  Hoyt  v.  Sheldon,  6 
Duer,  661 ;  S.  C,  4  Abb.  59.  In  one  case,  decided  at  special  tei*m, 
it  was  said  that  the  word  may  in  the  statute,  permitting  supple- 
mental pleadings,  should  be  read  as  must,  and  that  it  was  not 
material  that  the  application  for  leave  should  bo  made  at  the 
earliest  practicable  day.  Dwight  v.  Curtiss,  8  How.  56.  The 
remark  was  not  necessary  to  the  decision,  and  I  am  not  aware 
that  the  dictum  has  been  followed  or  approved  in  subsequent 
cases.  The  word  may,  according  to  its  ordinary  construction,  is 
permissive,  and  should  receive  that  interpretation,  unless  such  a 
construction  would  be  obviously  repugnant  to  the  intention  <>!  the 


286  SUPPLEMENTAL   PETITIONS   AND   ANSWERS. 

legislature,  to  be  collected  from  the  terms  of  the  act,  or  would  lead 
to  some  other  inconvenience  or  absurdity.  The  word  may,  in  a 
statute,  means  must,  or  shall,  in  those  cases,  when  the  public  arc 
interested,  and  the  public  or  third  persons  have  a  claim,  de  jure, 
to  have  the  power  exercised.  P.  D.  &  Co.  v.  Miller,  5  Johns.  Ch.  101. 
Chancellor  Kent,  in  the  case  referred  to,  says  the  word  has  such 
meaning  only  in  the  cases  mentioned.  .By  an  English  statute  it 
was  enacted  that,  '  if  certain  matters  should  be  made  to  appear  to 
the  satisfaction  of  the  court,  in  which  certain  actions  were  brought, 
or  of  a  judge  at  chambers  on  summons,  the  court  or  judge  may 
thereupon,  by  rule  or  order,  direct  that  the  plaintiff  shall  receive 
his  costs ;'  and  it  was  held  that  the  statute  left  the  matter  dis- 
cretionary with  the  court  and  was  not  compulsory.  Jones  v. 
Harrison,  6  Exch.  227 ;  Lotham  v.  Spedding,  20  L.  J.,  N.  S.,  Q.  B.  302. 
Had  the  legislature  intended  to  confer  an  absolute  right  upon  the 
party,  it  would  not  have  required  the  idle  ceremony  of  an  appli- 
cation to  the  court  for  leave,  but  would  have  permitted  the  sup- 
plemental pleading  to  have  been  served  of  course.  The  statute 
would  have  conferred  the  right  absolutely  by  appropriate  words. 
See  Minor  v.  M.  Bank,  1  Pet.  64 ;  Malcolm  v.  Eogers,  5  Cow.  188 ; 
King  v.  Corporation  of  Eyre,  cited  in  Smith's  Statutes,  etc.,  726. 

"  The  supplemental  answer  takes  the  place  of  the  former  plea 
puis  darrein  continuance ;  but  it  is  not  like  that,  a  waiver  of  de- 
fenses before  interposed,  and  is  not  confined  to  matters  arising 
since  the  last  continuance.  A  plea  puis  darrein  continuance  could 
not  be  rejected,  or  treated  as  a  nullity,  because  not  pleaded  in  due 
time  or  at  the  proper  time  ;  and  could  only  be  set  aside  upon  ap- 
plication to  the  court ;  and  the  court  in  its  discretion  could  permit 
the  plea  to  stand.     Graham's  Pr.  257,  and  cases  cited. 

"  Delay  in  interposing  the  defense  unexcused,  was  a  reason  for 
setting  aside  the  plea  ;  and  delay  in  pleading  an  insolvent  discharge 
was  regarded  as  sufficient  to  exclude  the  defense.  Sanford  v.  Sin- 
clair, 3  Duer,  269  ;  Desobry  v.  Morange,  18  Johns.  336 ;  Yalken- 
burg  v.  Dederick,  1  Johns.  Ch.  134." 

Such  are  the  decisions  in  reference  to  this  section.  But  it  seems 
to  me  that  there  is  an  omission  in  all  these  cases  of  one  material 
consideration.  This  section  provides  for  supplemental  petitions, 
answer,  and  replies.  Now,  a  supplemental  petition  or  answer  was 
exclusively  confined  to  equity  suits  and  proceedings  ;  they  had  no 
relation  or  resemblance  to  a  plea  puis  darrein  continuance.  A  sup- 
plemental bill  was  to  bring  before  the  court  matters  occurring 
after  the    suit  was  brought,  and  related   to  other   parties   than 


SUPPLEMENTAL   PETITIONS   AND   ANSWERS.  287 

the  parties  to  the  suit;  whereas,  a  plea  puis  darrein  was  of  matter 
occurring  between  the  parties,  which  put  an  end  to  the  suit,  like 
a  payment,  a  release,  an  award,  etc.  And  the  defendant  put  in 
this  plea  as  of  right.  1  Chit.  PI.  695.  He  did  not  ask  leave  of  the 
court ;  he  put  it  in  at  the  first  opportunity  which  occurred  after 
the  fact  happened.  Why  then  should  language,  which  refers 
solely  to  proceedings  in  equity,  be  applied  to  a  matter  of  legal  de- 
fense, which  the  law  gave  him  a  right  of  pleading.  Now  by  this 
construction  he  is  deprived  of  a  right  which  by  law  he  had  to  put 
in  this  plea,  he  is  left  at  the  discretion  of  the  judge,  whether  if 
he  has  paid  a  debt,  suit  pending,  he  may  be  permitted  to  set 
up  such  fact.  Whatever  was  a  good  plea  before  the  code  is  now  a 
good  answer.  This  is  the  rule  the  courts  have  laid  down  for  the 
construction  of  the  code,  and  yet  here  is  a  construction  in  direct 
violation  of  the  rule.  The  matter  of  a  supplemental  bill  or  answer 
can  not  affect  the  rights  of  the  parties,  since  the  rights  are  to  be 
decided  as  they  were  at  the  commencement  of  the  suit ;  hence  no 
rights  are  sacrificed  by  a  refusal ;  the  party  is  remitted  to  his 
original  bill,  when  the  prior  case  is  ended,  if  not  before.  It 
is  not  so  with  the  common-law  plea,  puis  darrein;  if  he  can  not 
plead  it,  he  must  have  an  unjust  judgment  rendered  against  him. 
If  he  was  in  default  for  not  pleading  it  in  time,  then  he  was  at  the 
mercy  of  the  court,  which  can  then  refuse  to  let  him  plead  a  legal 
defense,  and  render  a  judgment  against  him  contrary  to  law  and 
the  admitted  rights  of  the  parties.  This  distinction  should  be 
recognized,  even  if  this  section  is  to  control  the  pleading  of  mat- 
ter puis  darrein  in  an  action  at  law.  The  reason  of  the  distinction 
is  marked  and  clear,  and  should  be  listened  to  by  every  judge, 
who  is  called  on  to  exercise  his  discretion  in  depriving  a  man  of 
a  legal  defense  guaranteed  to  him  by  positive  law. 

Under  the  old  chancery  practice,  matter  omitted  when  the  bill 
was  originally  filed,  and  not  discovered  in  time  to  bo  inserted  as 
an  amendment,  may  be  introduced  into  the  case  by  supplemental 
bill ;  but  this  need  not  bo  done  under  our  practice,  as  an  amend- 
ment can  be  made  at  any  time.  2  Daniel  Ch.  Pr.  1G5:?.  Supple- 
mental matter,  then,  is  matter  happening  during  the  progress  of 
the  suit,  by  some  event  subsequent  to  the  institution  of  the  suit, 
so  that  the  proceedings,  as  (hey  stand,  can  not  have  their  full 
effect.  In  some  instances  the  abatement  of  a  suit  gives  rise  to 
new  matters,  which  it  becomes  necessary  to  introduce  into  the  pro- 
ceedings, in  which  cases  the  proper  remedy  is  by  bill  of  revivor  and 


288  SUPPLEMENTAL   PETITIONS   AND   ANSWERS. 

supplement.  3  Daniel  Ch.  Pr.  1654.  In  a  case  of  that  kind,  a 
mere  revivor  under  the  code  is  not  sufficient. 

When  the  bill  is  so  framed  that,  on  the  death  of  a  party,  all  that 
is  necessary  to  complete  relief  is  to  bring  in  his  heirs  or  executors, 
or  both,  as  the  case  may  require,  then  a  mere  revivor  is  all  that  is 
necessary.  But  there  are  cases  where,  on  the  death  of  a  party, 
new  interests  arise,  which  it  is  necessary  to  bring  into  the  case  be- 
fore complete  relief  can  be  had  ;  then  a  petition  in  the  nature  of  a 
supplemental  bill  and  a  bill  of  revivor  must  be  resorted  to.  Sup- 
pose the  case  of  a  petition  for  specific  performance,  and  the  defend- 
ant dies,  having  devised  the  land  in  dispute  to  others  than  heirs ; 
in  such  case,  the  fact  of  the  death,  will,  and  probate  of  it,  and  the 
devise  itself,  must  be  brought  into  the  case,  as  well  as  to  make  the 
devisees  parties.  A  supplemental  bill,  in  such  a  case,  must  be  re- 
sorted to.  The  code  does  not  provide  for  such  a  case  by  revivor. 
A  supplemental  bill  may  be  necessary  to  remedy  defects  in  a  suit, 
which  have  occurred  in  consequence  of  the  birth  of  new  parties, 
or  a  change  of  the  interests  of  those  originally  on  the  record. 
3  Daniel  Ch.  Pr.  1654.  When  properly  before  the  court,  it  is  an 
addition  to  the  original  bill,  and  becomes  part  of  it,  so  that  the 
whole  bill  is  to  be  taken  as  one  amended  bill.  Gillet  v.  Hall,  13 
Conn.  426.  In  Pedrick  v.  White,  1  Met.  76,  it  was  held  that  to 
warrant  the  filing  of  a  supplemental  bill,  it  should  be  shown  to  the 
court  either  :  1.  That  the  matter,  relied  upon  as  supplemental, 
arose  after  the  original  suit  was  commenced  ;  or  2.  That  the 
facts  relied  upon  first  came  to  the  plaintiff's  knowledge,  or  were 
made  known  to  him  in  such  manner,  that  he  could  not  avail  him- 
self of  them  after  the  cause  had  passed  the  stage  in  which  he 
might  have  had  leave  to  amend ;  or  3.  That  the  plaintiff  has 
been  prevented,  through  inadvertence,  misapprehension,  etc.,  of 
himself,  his  agents,  or  counsel,  or  other  cause  satisfactorily  shown, 
from  availing  himself  of  the  proposed  matter  of  his  supplemental 
bill  at  an  earlier  stage  of  the  cause.  Candler  v.  Pettit,  1  Paige, 
168;  Stafford  v.  Howlett,  1  Paige,  201. 

A  supplemental  bill,  introducing  new  facts  relating  to  the 
merits,  ought  not  to  be  filed  as  a  matter  of  course,  but  only  by 
leave  of  the  court  upon  sufficient  cause  shown.  Tappan  v.  Evans, 
12  N.  H.  330  ;  Pedrick  v.  White,  1  Met.  76  ;  Eager  v.  Price, 
2  Paige,  333  ;  Lawrence  v.  Bolton,  3  Paige,  294;  1  Hoff.  Ch.  Pr. 
403.  Matters  which  have  occurred  since  the  original  bill  was  filed, 
and  which  are  material  to  perfect  the  plaintiff's  case,  may  also  be 
introduced  into  the  record  by  supplemental  bill.     Story's  Eq.  PL, 


SUPPLEMENTAL   PETITIONS   AND   ANSWERS.  2S9 

sees.  335,  336,  and  note  ;  Greenleaf  v.  Queen,  1  Pet.  148 ;  Candler 
v.  Pettit,  1  Paige,  168  ;  Stafford  v.  Hewlett,  1  Paige,  200.     Thus 
where  a  plaintiff  has  an  inchoate  right  at  the  time  of  filing  his 
original  bill,  which  merely  requires  a  formal  act  to  complete  it, 
which   is   not  performed  till  afterward,  such  formal  act  may  be 
brought  before  the  court  by  supplemental  bill,  as  in  the  instance 
of  an  executor  or  administrator  filing  a  bill  before  probate  or  ad- 
ministration taken  out ;  in  such  a  case,  the  fact  of  the  probate  or 
administration  having  been  granted,  may  be  introduced  by  amend- 
ment ;  but  if  the  record  is  not  in  a  state  to  admit  the  amendment, 
it  may  be  introduced  by  supplemental  bill.     Humphreys  v.  Hum- 
phreys, 3  P.  Wins.  508.     When  any  event  happens  subsequently 
to  filing  an  original  bill,  which  gives  a  new  interest  or  right  to  a 
party,  it  should  be  set  out  in  a  supplemental  bill.     Saunders  v. 
Frost,  5  Pick.  276.     A  supplemental  bill  must  follow  the  original 
complaint,  and  set  forth  actual  and  subsequent  damages  arising 
from  the  same  cause  set  forth  in  the  bill.     Bardwell  v.  Ames,  22 
Pick.  375 ;  Story's  Eq.  PL,  sees.  336,  339.     In  Bardwell  v.  Ames, 
the  court  say  :  "  In  regard  to  these  damages,  it  may  be  proper  to 
make  another  suggestion.    When  this  bill  was  brought,  the  wrongs 
sought  to  be  redressed  were  anticipated,  not  actually  suffered!    All 
the  acts  and  torts  for  which  damages  were  awarded  were  done,  it 
is  believed,  after  the  suit  was  commenced.     It  may  be  a  question 
whether  damage  in  such  a  case  can  be  awarded  without  a  supple- 
mental bill,  showing  that  the  injury  feared  had  been  realized  ;  but 
whether  a  supplemental  bill,  in  point  of  form,  would  be  necessary 
or  not,  is  immaterial-;   because,  if  a  supplemental  bill  could  be 
filed,  it  must  follow  the  original  complaint,  and  set  forth  actual 
and  subsequent  damages  arising  from  the  same  cause  set  forth  in 
the  bill."     In  that  case  an  injunction  was  prayed  to  enjoin  the  de- 
fendant from  using  over  a  certain  quantity  of  water  drawn  from  a 
certain  pool,  and  to  obtain  damages  lor  taking  such  excess. 

Tin-  reader  is  to  be  reminded  thai  a  plaintiff  can  not  support  a 
bad  title  by  acquiring  another  after  the  filing  of  the  original  bill, 
and  then  bringing  it  forward  by  a  supplemental  bill.  Tonkin  v. 
Lethbridge,  Cooper,  43.  Thus,  in  the  above  case,  when  the 
plaintiff  tiled  his  original  bill  to  redeem  a  mortgage  as  heir  at  law 
of  the  original  mortgagor,  and,  upon  issue  directed,  was  found 
not  to  be  heir ;  but,  in  the  meantime,  he  bad  bought  in  the  interest 
of  a  third  person,  who  claimed  to  be  heir,  and  bad  amended  his 
bill  by  Stating  that  fact,  and  upon  the  issue  being  found  against 

\uL  I — l'j 


290  SUPPLEMENTAL    PETITIONS   AND   ANSWERS. 

him,  he  filed  a  supplemental  bill  stating  the  purchase,  and  praying 
that  he  might  be  declared  entitled  to  redemption  and  conveyance 
prayed  by  the  original  bill.  To  this  supplemental  bill  the  defend- 
ant demurred,  "  because  it  did  not  appear  by  such  supplemental 
bill  that  any  new  matter  had  arisen  since  the  filing  of  the  original 
bill  in  the  cause,  which  was  properly  matter  of  supplement,  and 
the  demurrer  was  allowed  ;  Lord  Eldon  observing  that  to  entitle 
a  plaintiff,  by  a  supplemental  bill,  to  the  benefit  of  the  former  pro- 
ceedings, it  must  be  in  respect  of  the  same  title  in  the  same  person, 
as  stated  in  the  original  bill."  The  same  principle  appears  to  have 
been  acted  upon  by  Lord  Thurlow  in  Davidson  v.  Foley,  3  Bro. 
C.  C.  598,  and  by  Lord  Brougham  in  Pritchard  v.  Draper,  1  B.  & 
M.  191.  It  is,  however,  to  be  remarked  that  it  is  only  where  the 
first  title  is  absolutely  bad  that  a  supplemental  bill  of  this  descrip- 
tion will  be  improper;  where  the  plaintiff  had  originally  a  good 
inchoate  title,  which  only  required  some  formal  act  to  make  it  per- 
fect, there  the  statement  of  such  act  by  a  supplemental  bill  will  be 
permitted.  Thus,  in  Mutter  v.  Chauvel,  5  Buss.  42,  where  the 
plaintiff  claimed  a  right  to  the  rents  and  profits  of  the  benefice  by 
virtue  of  a  nomination  by  himself,  under  an  equitable  right  to 
nominate,  derived  from  his  father's  will,  and  filed  his  bill  against 
the  incumbent  and  others  for  an  account  of  such  rents  and  prof- 
its from  the  time  of  his  nomination,  etc. ;  and  it  appeared,  upon 
the  hearing,  that  a  deed  of  release  from  his  sisters  to  the  plaintiff, 
which  formed  an  essential  part  of  the  plaintiff's  title  to  the  right 
of  nomination,  was  not  executed  till  long  after  the  filing  of  the  bill, 
Sir  Thomas  Plumer,  M.  B.,  permitted  the  case  to  stand  over,  with 
liberty  to  the  plaintiff  to  file  a  supplemental  bill  for  the  purpose 
of  regularly  introducing  the  release  from  his  sisters. 

A  supplemental  bill,  for  the  purpose  of  adding  new  matter,  or 
for  bringing  new  parties  before  the  court,  may  also  be  filed  after, 
as  well  as  before  the  decree  ;  thus  where  a  defendant  appealed  from 
a  decree  of  the  master  of  the  rolls,  but  before  it  was  brought  on, 
the  plaintiff,  apprehending  that  he  had  not  proper  parties  before 
the  court,  when  the  decree  was  pronounced,  to  enable  them  to 
carry  it  into  effect,  filed  a  supplemental  bill  for  the  purpose  of 
bringing  the  necessary  parties  before  the  court;  to  the  supple- 
mental bill  the  defendant  demurred,  but  the  demurrer  was  over- 
ruled.    Woodward  v.  Woodward,  1  Dick.  33. 

The  reader  maj^  also  be  reminded  in  this  place  that  where  a  bill 
has  been  exhibited  against  a  man  and  his  wife,  and  the  husband  dies 
pending  the  suit,  and  a  new  interest  thereupon  arises  to  the  wife, 


SUPPLEMENTAL    PETITIONS   AND  ANSWERS.  291 

a  supplemental  bill  ought  to  be  filed  for  the  pm-pose  of  giving  the 
wife  an  opportunity  of  putting  in  another  defense  in  respect  to  her 
newly  acquired  interest.  Shelbury  v.  Briggs,  2  Vernon,  248;  1  Eq. 
0.  Abr.  1  pi.  -4.  So  if  a  plaintiff,  suing  in  his  own  right,  make  such 
an  alienation  of  his  property  as  to  render  the  alienee  a  necessary 
party  to  the  suit,  but  not  at  the  same  time  to  deprive  himself  of 
all  right  in  the  question,  he  must  bring  the  alienee  before  the  court 
by  supplemental  bill,  or  the  alienee  may  himself  file  a  supple- 
mental bill  against  the  original  plaintiff  and  the  other  parties  to 
the  suit,  to  have  the  benefit  of  the  proceedings.  Binks  v.  Binks, 
2  Bligh,  593.  In  like  manner,  if  a  plaintiff  suing  in  his  own  right 
is  entirely  deprived  of  his  interest,  but  is  not  sole  plaintiff,  the 
defect  arising  from  this  event  may  bo  supplied  by  a  bill  of  this 
kind.  Lord  Bed.  63.  So  if  a  plaintiff  becomes  insane,  a  supple- 
mental bill  may  be  filed  in  the  joint  names  of  the  lunatic  and  his 
committee.     1  Daniel  Ch.  Pr.  16G4. 

It  is  to  be  recollected  here  that  an  assignment  or  alienation, 
pendente  lite,  is  not  permitted  to  affect  the  rights  of  the  other 
parties,  unless  the  alienation  disables  the  party  from  performing 
the  decree  of  the  court,  as  in  the  case  of  an  assignment  of  a  mort- 
gagee  of  his  interest  in  the  mortgage  pending  a  suit  to  redeem;  in 
which  case  the  assignee  must  be  brought  before  the  court  by  a  sup- 
plemental bill.  Lord  Red.  74.  Where,  however,  the  assignment, 
ente  lite,  is  of  an  equitable  interest,  ;is  in  the  ease  of  bankruptcy 
by  operation  of  law,  there  does  not  seem  to  be  any  absolute  neces- 
sity lor  the  assignee  to  be  brought  before  the  court,  nor  does  it 
seem  to  be  material  whether  the  assignee  is  a  plaintiff  or  defend- 
ant to  the  bill.  Earles  v.  Harris,  1  Y.  &  C.  235.  In  such  a  case, 
however,  unless  the  alienee  can  he  protected  by  the  ordinary  course 
of  petitioning  lor  an  order  that  the  alienor  may  not  take  the  fund 
he  is  entitled  to  in  the  suil  out  of  court,  without  notice  to  him,  he 
ft  he  alienee)  may  make  himself  a  party  to  the  suit  by  supplemental 
bill  against  the  other  parties.  Foster  v.  Deacon,  Mad.  &  Geld.  59. 
If,  however,  a  sdle  plaintiff  suing  in  his  own  right,  is  deprived  of 
his  whole  right  iii  the  matters  in  question  by  an  event  subsequent 
to  the  institution  of  the  suit,  as  in  case  of  a  bankrupt  or  insolvent 
debtor,  whose  whole  property  is  transferred  to  assignees;  or.  ill 

auch  a  plaintiff  ussi^ns  his  whole  interest  to  another,  the' 
plaintiff,  being  no  longer  able  to  prosecute  tor  want  of  interest. 
and  Ids  assignees  claiming  by  ;i  title  which  may  lie  litigated,  the 

:it  of  the  proceedings  can  not  he  obtained  by  means  of  ;t  sup- 
plemental bill,  but  musl  be    •  >  1 1 1  - 1 1 1   by  an  original  bill  inthenature 


292  SUPPLEMENTAL   PETITIONS    AND   ANSWERS. 

of  a  supplemental  bill.  3  Daniel  Ch.  Pr.  1GGG.  In  this  bill,  a  new 
defense  may  be  made,  the  pleadings  and  depositions  can  not  be 
made  use  of  in  the  same  manner  as  if  filed  or  taken  in  the  same 
cause,  and  the  decree,  if  any  has  been  obtained,  is  no  otherwise  of 
advantage  than  as  it  may  be  an  inducement  to  the  court  to  make 
a  similar  decree.  Attorney-General  v.  Foster,  2  Hare,  81;  S.  C, 
13  Sim.  282 ;  whilst  in  a  case  of  a  mere  supplemental  suit,  the  ben- 
efit of  the  original  decree,  if  obtained,  is  expressly  given  to  the 
new  plaintiff  by  the  supplementary  decree,  and  he  is  declared  en- 
titled to  stand  in  the  place  of  the  plaintiff  in  the  original  bill,  and 
to  have  the  benefit  of  the  proceedings  upon  it,  and  to  prosecute  the 
decree,  and  to  take  the  steps  necessary  to  render  it  effectual. 

In  the  first  place,  on  the  authority  of  Lord  Eedesdale  (Ld.  Red. 
65),  we  have  seen  that  upon  the  bankruptcy  of  a  sole  plaintiff,  his 
assignees  proceed  by  original  bill  in  the  nature  of  a  supplemental 
bill. 

In  the  second  place,  where  a  sole  plaintiff  executes  an  assign- 
ment of  his  whole  interest  in  the  suit,  notwithstanding  the  assignee 
claims  under  the  former  plaintiff,  he  must,  in  like  manner,  proceed 
by  original  bill. 

We  shall  hereafter  find  that,  in  general,  where  the  interest  of  a 
plaintiff  is  transmitted  to  another  person,  coming  in  under  the 
same  title,  the  suit  may  be  proceeded  with  by  a  common  supple- 
mental bill  in  continuation  of  the  original  suit. 

The  reason  why  an  assignee  of  the  plaintiff  must  file  an  original 
bill  is  stated  to  arise  from  the  doctrine  of  maintenance  ;  hence  such 
an  assignment  is  illegal,  unless  the  suit  relates  to  specific  property, 
and  the  assignment  then  must  be  of  the  property  and  not  of  the 
suit ;  and  that  carries  with  it  the  right  to  sue  in  regard  to  that 
property.     3  Daniel  Ch..  Pr.  16G7. 

Thirdly.  We  have  seen  when  the  plaintiff  sues  in  autre  droit 
and  his  interest  determines,  his  successor,  representing  the  same 
interest,  may  proceed  by  a  simple  bill  of  supplement,  and  this  rule 
applies,  although  he  does  not  claim  under  the  former  plaintiff.  3 
Daniel  Ch.  Pr.  1G67,  1665. 

This  brings  us  to  the  consideration  of  another  case,  in  which  a 
supplemental  bill  is  frequently  resorted  to,  to  wit,  whei-e  in  a  suit 
instituted  by  a  creditor,  on  behalf  of  himself  and  other  creditors 
of  a  person  deceased,  the  creditor  who  files  the  bill  dies,  and  his 
representative  omits  to  continue  the  suit  after  decree.  In  such 
case,  it  is  almost  a  matter  of  course  to  permit  another  creditor,  who 
has  come  in  under  the  decree,  and  established  his  claim  as  a  cred- 


SUPPLEMENTAL    PETITIONS   AND   ANSWERS.  293 

itor  before  the  master,  to  take  up  the  proceedings  by  supplemental 
bill,  but  notice  must  first  be  given  to  the  representative  of  the  de- 
ceased plaintiff  to  revive,  and  then,  if  he  does  not,  the  other  cred- 
itor may,  on  leave,  file  a  supplemental  bill.  3  Daniel  Ch.  Pr,  1674 ; 
Houlditch  w.  Marquis  Donnegal,  1  S.  &  G.  491 ;  Dixon  v.  Wyatt,  4 
Mad.  392. 

If  the  supplemental  bill  is  occasioned  by  an  event  subsequent  to 
the  original  bill,  it  must  state  that  event,  and  the  consequent  al- 
teration of  the  parties  thereon  ;  and  it  must  pray  that  the  defend- 
ants may  appear  and  answer  to  the  charges  it  contains ;  for  if  the 
supplemental  bill  is  not  for  a  discovery  merely,  the  cause  must  be 
heard  upon  the  supplemental  bill  at  the  same  time  that  it  is  heard 
upon  the  original  bill,  if  it  has  not  been  before  heard  :  and  if  the 
cause  has  been  before  heard,  it  must  be  further  heard  upon  the 
supplemental  matter.  Story's  Eq.  PL,  sec.  343 ;  Pedrick  v.  White, 
1  Met.  76. 

In  reference  to  the  case  already  existing,  a  supplemental  bill 
should  state  so  much  of  the  case  as  shows  that  he  has  an  equity 
against  such  defendant.  With  respect  to  a  simple  bill  of  supple- 
ment filed  against  the  parties  to  the  original  suit,  for  the  purpose 
of  putting  in  issue  new  matter,  it  does  not  seem  that  it  was  ever 
the  practice  to  introduce  statements  from  the  pleadings  in  the  orig- 
inal suit.  Where  a  new  party  is  to  be  brought  in,  the  supple- 
mental bill  is  an  original  bill  as  to  him.  and  must  state  enough  of  the 
case  to  put  the  title  of  the  plaintiff  to  relief  against  such  new  de- 
fendant in  issue;  the  new  party  can  not  be  called  on  to  answer 
the  original  bill;  there  is  no  other  method  by  which  the  plaint- 
iff's title  to  maintain  the  suit  can  be  put  in  issue  than  by  a  state- 
ment of  it  in  the  supplemental  bill.  It  is,  however,  to  be  observed 
that,  for  this  purpose,  the  mere  statement  of  the  former  proceed- 
ings has  been  held  sufficient  to  put  the  facts  of  the  case  in  issue 
with  regard  to  this  sort  of  defendant  :  that  is,  you  may,  in  the 
supplemental  bill,  state  that  you  have  made  such  a  representation 

in  the  former  bill,  instead  of  representing   the   tacts   in    the  second 

bill.  Lloyd  /■.  .lon.s.  !i  \Vs.  :;t.  The  form  of  the  supplemental 
bill  will  vary  according  to  the  character  of  the  supplemental  mat- 
ter to  be  inserted.  If  the  objeel  is  merely  to  introduce  a  new  tact 
or  Facts,  the  existence  of  the  original  suit  and  the  new  matter  are 
all    that    need    be    stated;    whereas,    when    new    parties   are    to    lie 

brought  in.  the  name  of  the  suit,  the  parlies  thereto,  ami  the  sub- 
stance of  the  petition  and  other  pleadings  and  proceedings  up  to 


294  SUPPLEMENTAL   PETITIONS   AND   ANSWERS. 

that  time  must  be  stated,  and  the  facts  showing  a  right  to  relief  to 
the  new  party. 

On  an  ex  parte  application  for  leave  to  file  a  supplemental  bill,  a 
court  examines  the  question  so  far  as  to  see  that  the  privilege  is 
not  abused  for  the  purposes  of  delay  and  vexation  to  the  defendant. 
Eager  v.  Price,  2  Paige,  333.  In  a  doubtful  ease,  the  court  may 
direct  notice  to  be  given  of  the  application  to  the  defendants  who 
have  appeared.  lb.  The  application  may  be  made  either  by  mo- 
tion or  petition.  A  bill  of  this  nature  ought  to  be  filed  as  soon  as 
the  new  matter  sought  to  be  inserted  therein  is  discovered.  And 
if  the  party  proceeds  to  a  decree  after  the  discovery  of  the  facts 
upon  which  the  new  claim  is  founded,  he  will  not  be  permitted 
afterward  to  file  a  supplemental  bill,  in  the  nature  of  a  bill  of  re- 
view, founded  on  such  facts.  Pendleton  v.  Pay,  3  Paige,  204; 
Story's  Eq.  PL,  sec.  338a.  If  such  bill  is  filed  without  sufficient 
grounds,  the  defendant  must  make  the  objection  by  plea,  answer, 
or  demurrer.  Lawrence  v.  Bolton,  3  Paige,  294;  Fulton  Bank  v. 
N.  Y.  &  S.  Canal  Co.,  4  Paige,  127.  A  supplemental  bill  may  be 
filed  after  publication  is  passed.  N.  A.  Coal  Co.  v.  Dyett,  2  Edw. 
115  ;  Pleasants  v.  Logan,  4  Hen.  &  Mumf.  489. 

It  will  thus  bo  seen  what  are  the  principles  and  what  the  prac- 
tice in  relation  to  supplemental  petitions.  The  code  merely  adapts 
the  rules  of  chancery  as  to  supplemental  pleadings,  as  to  facts 
arising  after  the  pendency  of  the  suit.  Without  the  prior  prac- 
tice in  regard  to  the  matter,  we  could  hardly  tell  what  was  here 
meant,  and  in  what  cases  such  a  proceeding  would  be  proper. 
And,  as  is  said  above,  the  distinction  between  the  meaning  of  this 
section,  in  its  relation  to  proceedings  at  law,  and  supplemental 
matter  in  a  suit  in  equity.  There  can  be  no  supplemental  petition 
in  an  action  at  law;  in  this  respect,  the  section  is  limited  to  suits 
in  equity. 

Supplemental  answers  arc  answers  where  omissions  made  in  the 
first  answer  are  sought  to  be  supplied.  These  cases  would,  under 
the  code,  be  met  by  an  amendment.  Whatever  could  have  come 
in,  in  the  original  answer,  must,  if  omitted,  come  in  by  an  amend- 
ment of  the  answer.  The  courts  in  chancery  were  cautious  in  al- 
lowing answers,  which  were  put  in  under  oath,  to  be  amended,  or 
a  supplemental  or  additional  answer  to  be  filed  ;  it  was  only  done 
when  the  fact  was  then  unknown,  or  when  he  was  advised  by 
counsel  that  it  was  unnecessary.  So,  where  the  defendant  had 
been  induced,  by  the  misrepresentation  of  the  plaintiff,  that  cer- 
tain securities  mentioned  in  the  bill  had  been  fairly  obtained,  to 


SUPPLEMENTAL   PETITIONS   AND    ANSWERS.  295 

put  in  an  answer  admitting  the  securities,  etc.,  the  defendant  was 
permitted,  upon  motion,  to  file  a  supplemental  answer.  Curling  v. 
Marquis  of  Townsend,  19  Ves.  628.  In  Baursfield  v.  Patterson 
(cited  1  Smith  Ch.  Pr.  271),  a  defendant  was  allowed  to  file  a  sup- 
plemental answer,  for  the  purpose  of  stating  that,  since  bis  orig- 
inal answer  had  been  filed,  probate  had  been  granted  of  a  will 
mentioned  in  the  pleadings.  Anon.,  1  Hopk.  27;  Smith  v.  Smith, 
4  Paige,  132 ;  Taylor  v.  Titus,  2  Edw.  135.  In  an  anonymous 
case  (1  Hopk.  27),  a  petition  was  presented  by  a  defendant,  setting 
forth  tbat,  since  the  filing  of  his  answer,  he  had  procured  the  ex- 
emption of  his  person  from  imprisonment,  under  the  act  for  that 
purpose,  and  prayed  for  leave  to  file  a  supplemental  answer ;  and 
the  court  allowed  it  to  be  done.  Mr.  Emmott  objected,  as  it  was 
matter  for  a  cross-bill.  And  such,  in  fact,  is  the  chancery  practice. 
"A  cross-bill  may  be  filed  to  answer  the  purposes  of  a  plea  puis 
darrein  continuance  at  common  law.  Thus,  when  pending  a  suit, 
and  after  replication  and  issue  joined,  the  defendant,  having  ob- 
tained a  release,  attempted  to  prove  it,  viva  voce,  at  the  hearing, 
but  it  was  determined  that  the  release  not  being  in  issue  in  the 
.  the  court  could  not  try  the  fact,  nor  direct  a  trial  at  law  for 
that  purpose,  and  that  a  new  bill  must  be  filed  to  put  the  release 
in  issue.  3  Daniel  Ch.  Pr.  1713;  Mit.  PI.  82  ;  Hayne  v.  Hayne,  3 
Ch.  19;  3  Swanst.  172,  474;  Story's  Eq.  PL,  sec.  393.  In  Smith  v. 
Smith,  4  Paige,  -432,  the  chancellor  left  undecided  whether  matter 
happening  after  suit  brought  should  be  taken  advantage  of  by  an- 
swer or  cross-bill.  The  case  in  Hopk.  27,  was  called  to  his  atten- 
tion, and  lie  did  not  seem  inclined  to  follow  it. 

It  would  seem  that  there  was  no  such  thing  as  a  supplemental 
answer  under  the  practice  in  chancery;  the  only  instance  at  law 
was  the  plea  puis  darrein  continuance.  But  it  would  seem  that  the 
code  had  changed  the  rule  in  chancery,  and  now,  whether  in  an 
action  at  law  or  a  suit  in  equity,  any  matter  material  to  the  decis- 
ion of  th<-  case  may  be  brought  before  the  court  by  a  supplemental 
answer  to  be  filed  on  motion  and  notice  to  the  opposing  parties, 
and  on  leave  of  the  court.  There  are  no  cases  to  serve  as  a  guide 
in  a  suit  in  equity,  nor  any  prior  practice ;  and  the  courts  must  do 
the  bes1  they  can  to  create  a  practice  which  will  subserve  the  ends 
of  justice.  Some  light  to  guide  may  be  obtained  from  the  practice 
in  regard  to  supplemental  hills  already  stated. 

As  to  supplemental  reply,  thai  goes  one  step  furtherthan  any 
court  or  practic  ■  has  gone.  When  a  case  arises  of  new  matter  for 
a  reply,  the  court  must  dispose  of  it  as  good  sense  and  analogy 


296  SUPPLEMENTAL   PETITIONS   AND   ANSWERS. 

and  justice  would  seem  to  require.  There  is  no  light  shining  in 
the  past  to  guide  it. 

The  New  York  code  also  applies  to  matters  which  were  unknown 
to  a  party  at  the  time  of  filing  his  original  complaint,  answer,  or 
reply.  The  Ohio  code  is  restricted  to  matters  which  have  occurred 
Bince  that  time.  A  matter  which  occurs  between  the  filing  of  the 
petition  and  the  answer  may  be  set  up  in  the  answer. 

This  supplemental  petition,  or  answer,  or  reply,  must  be  filed  on 
motion  to  the  court,  and  on  notice  to  the  other  party.  The  notice 
need  only  show  that  the  party  will  apply  to  the  court  for  leave  to 
file  a  supplemental  petition,  etc.,  at  a  named  time.  The  motion 
must  be  supported  by  the  affidavit  of  the  party,  showing  the  facts 
which  he  wishes  to  set  up  in  his  supplemental  pleading. 

FORM    OF   NOTICE. 

A  B,  plaintiff,   "}  Cmnty^  ^ 


V  s 
C  D,  defendant,  j  Court  of  Common  Pleas. 

The  said  A  B,  plaintiff,  will  take  notice  that  the  said  C  D,  de- 
fendant, will  apply  to  the  said  court  on  the  first  day  of  its  next 
term  (or,  if  court  is  in  session,  on  to-morrow),  or  as  soon  thereafter 
as  he  can  be  heard,  for  leave  to  file  a  supplemental  answer  in  the 
above  case,  at  which  time  you  can  be  present  and  object,  if  you  see 
proper. 

Dated,  etc.  C  D, 

By  E  F,  Attorney. 

AFFIDAVIT   IN    SUPPORT    OF   THE   MOTION. 

A  B,  plaintiff;   |  ^^  ^ 

C  D,  defendant.  J  Coiirt  of  Common  Pleas. 

And  the  said  C  D,  being  first  duly  sworn,  deposeth  and  saith 
that  since  the  commencement  of  this  suit,  the  said  A  B  has  trans- 
ferred and  assigned  all  his  right,  title,  and  interest  in  the  claim 
sought  by  him  to  be  enforced  in  this  action,  to  one  N  O,  and  that 
this  defendant  has,  since  said  transfer  and  since  the  filing  of  his 
former  answer,  paid  to  said  KO$  ,  in  full  satisfaction  and  dis- 
charge of  the  sum  of  money  sought  to  be  recovered  in  this  action, 
and  the  said  defendant  saith  that  he  wishes  to  set  up  said  facts  in 
bar  of  the  present  action ;  and  further  he  saith  not. 

C  D. 

Signed  in  my  presence,  and  sworn  to  before  me,  this  day 

of  ,  a.  d.  18     . 

Justice  of  the  Peace. 


AMENDMENTS.  297 


ENTRY. 

On  motion  of  the  said  C  D,  by  1ST  O,  his  attorney,  and  on  pres- 
entation of  his  affidavit,  it  is  ordered  that  the  said  C  D  be  per- 
mitted, within  days,  to  file  a  supplemental  answer,  setting  up, 
by  way  of  defense,  the  facts  stated  in  his  affidavit  exhibited  on  the 
hearing  of  this  motion. 

MOTION   FOR    LEAVE    TO    FILE    SUPPLEMENTAL   ANSWER. 

A  B,  plaintiff,    j  County,  ss. 

C  D,   defendant.  }  Court  of  Common  Pleas. 

The  said  C  D,  defendant,  now  comes  and  moves  the  court  here 
for  leave  to  file  a  supplemental  answer  to  the  petition  of  the  said 
A  B,  setting  up  by  way  of  defense,  that  since  the  filing  of  the  former 
answer  in  this  case  by  said  defendant,  the  said  plaintiff  has  as- 
signed all  his  interest  in  the  claim  sought  to  be  recovered  in  this 
action  to  one  N  O,  to  whom  this  defendant  has  paid  said  claim. 

CD, 
By  E  F,  his  Attorney. 

Xote. — It  is  doubtful  whether  this  motion  need  contain  a  state- 
ment of  what  the  facts  are.  They  will  appear  to  the  court  in  the 
affidavit  and  on  the  record  when  the  answer  is  filed.  It  would 
6eem,  therefore,  that  no  facts  need  be  stated  in  the  motion  put  on 
file.  If  any  are  stated,  it  need  only  be  very  briefly,  so  as  to  show 
that  they  will  constitute  a  defense  to  the  action. 


CHAPTER  XVII. 


A^IKNPMENTS. 

I.  Amendments  without  leave  of  Court. 

Sec.  134.  The  plaintiff  may  amend  his  petition  without.  Leave  at 
anytime  before  the  answer  is  filed,  without  prejudice  to  tin'  pro- 
eeeding;  but  notice  of  such  amendment  shall  be  served  upon  the 
defendanl  or  bis  attorney,  and  the  defendant  shall  have  the  same 
time  to  answer  or  demur  thereto  as  \>>  the  original  petition. 


298  AMENDMENTS. 


Under  our  practice  there  is  no  use  in  requiring  the  notice  to  be 
given.  The  party  might  often  as  well  begin  anew,  as  it  will  cost 
as  much  to  serve  the  notice  as  to  dismiss  the  first  and  commence  a 
now  action.  In  New  York  these  notices  are  necessary,  since  by 
its  practice  the  papers  in  a  case  are  not  filed  in  court,  but  retained 
by  the  attorney  until  Luc  wishes  to  have  his  judgment  entered  or  his 
case  tried,  lie  serves  copies  of  his  petition  on  the  opposite  party; 
and  hence  if  he  alter  his  petition  he  must  notify  his  adversary  of 
it;  otherwise  his  adversary  has  the  right  to  presume  that  the  case 
is  to  be  tried  on  the  petition  as  served  on  him.  In  Ohio  all  pleadings 
are  filed  in  court;  are  open  to  the  inspection  of  both  parties;  and 
if  altered  or  amended  before  answer,  the  other  party,  when  he 
comes  to  answer,  must  know  it,  and  know  also  when  by  law  he  is 
required  to  answer.  Still  here  again  is  an  absurd  provision  copied 
from  the  practice  of  another  State,  which  practice  is  wholly  unlike 
our  owm,  and  the  effect  of  which  is  to  render  this  right  of  amend- 
ment almost  iiscless. 

Sec.  135.  So  at  any  time  within  ten  days  after  a  demurrer  has 
been  filed,  a  party  may  amend  the  pleading  demurred  to  ;  but  he 
must  again  give  notice  of  it  to  the  adverse  party  and  pay  the  costs. 
Under. our  practice  there  are  no  costs  save  the  mere  pittance  for 
filing  the  demurrer;  while  in  New  York,  under  their  mischievous 
fee-bill,  this  payment  of  costs  has  a  very  different  meaning ;  it  there 
means  the  fees  of  the  attorney  for  drawing  and  filing  the  demur- 
rer— a  fee  fixed  by  law. 

Under  these  provisions  a  party  has  no  right  to  amend  his  com- 
plaint, by  striking  out  the  name  or  names  of  one  or  more  parties, 
without  leave  of  the  court.  Russell  v.  SjDear,  3  Code,  189.  Section 
137  provides  for  amendments  by  striking  out  or  inserting  the  names 
of  parties,  and  that  can  be  done  only  on  leave  of  the  court.  Hence 
this  is  not  one  of  those  amendments  that  can  be  made  of  course. 
Nor  will  the  plaintiff  be  allowed,  under  the  form  of  an  amendment, 
to  introduce  in  effect  a  new  bill  or  answer.  Verplanck  v.  Merch'ts 
Ins.  Co.,  4  Edw.  4G ;  Dodd  v.  Astor,  2  Barb.  Ch.  395  ;  18  Johns. 
310  ;  2  Wend.  259.  If  such  an  amendment  is  made,  the  defendant 
can  not  treat  it  as  a  new  action.  McGrath  v.  Van  Wyck,  2  Sandf. 
S.  C.  G51.  In  Russell  v.  Spear,. 5  Pr.  142,  the  court  says:  "  There 
is  no  part  of  the  code  which  permits  a  plaintiff  to  change  the 
parties  in  the  cause  without  leave  of  the  court.  This  section  of  the 
code  applies  only  to  such  amendments  as  will  not  create  an  action 
between  other  parties." 


AMENDMENTS.  299 


So  where  the  action  "was  commenced  in  the  nature  of  a  replevin 
for  goods,  and  the  plaintiff  amended  before  answer  so  as  to  make 
it  an  action  on  a  promise  to  pay  for  the  same  goods,  the  court  held 
that  the  amendment  was  irregular  and  should  beset  aside,  and  that 
an  answer  which  had  been  tiled  to  the  amended  complaint,  as  to  a 
new  action,  was  also  irregular;  because,  though  the  amendment 
was  improper,  it  was  not  the  commencement  of  a  new  action,  nor 
could  the  defendant  make  it  such  by  his  answer.  McG-rath  v.  Van 
Wyck,  2  Sandf.  S.  C.  G51. 

The  amendments,  then,  which  are  amendments  of  course,  are  only 
such  as  to  supply  some  omission  in  the  original  pleading,  without 
working  a  change  of  parties  or  of  the  cause  of  action.  If  a  second 
answer  is  filed,  which  in  its  legal  effect  is  the  same  as  the  first,  it  is 
not  an  amended,  but  a  new  answer,  and  will  be  stricken  out  on  mo- 
tion.     Snyder  v.  White,  6  Pr.  321. 

The  word  amendment  implies  that  there  is  an  action  existing 
which  is  to  be  amended.  Hence  never  can  a  new  action  be  com- 
menced, or  a  new  cause  of  action  inserted,  under  the  pretense  of 
an  amendment.  This  is  no  amendment  of  an  existing  action  or 
cause  of  action,  but  the  commencement  of  a  new  action;  the  in- 
sertion of  a  new  ground  of  recovery.  Neither  a  party  nor  the 
court  has  any  power  to  do  this,  under  the  false  pretense  of  an 
amendment.  The  rule  is  thus  stated  in  Field  v.  Morse,  8  Pr.  47,  by 
Welles,  J.:  "It  is  not  allowable  to  a  party,  under  the  privilege 
given  to  amend  of  course,  to  substitute  a  new  and  different  cause 
of  action  or  defense  in  the  amended  pleading;  but  he  may  change 
the  manner  of  stating  the  same,  may  leave  out  redundant  or  irrel- 
evant matter,  or  add  facts  in  support  of  the  cause  of  action  or  de- 
fene  •  stated  in  the  original  pleading."  The  same  view  of  the  ques- 
tion is  taken  by  Strong,  J.,  in  Hollister  v.  Livingston,  9  Pr.  140, 
where  ii  is  said  that  the  amendmenl  must  be  confined  to  the  mat- 
ter of  the  original  pleading,  and  can  not  introduce  new  causes  of 
action. 

II.  Amendments  by  leave  of  Court  after  a  Demurrer  has  been  sus- 
tained. 
Sec.  139.  If  a  demurrer  is  sustained  to  any  pleading,  tin1  ad- 
verse party  may  be  permitted  to  amend,  if  the  delect  in  the  plead- 
ing can  be  remedied  by  amendmenl  ;  and  this  leave  to  amend  may 
be  with  or  without  costs,  at  the  discretion  of  the  court. 


This  .section  does  not  authorize  the  introduction  of  a  new  cause 


300  AMENDMENTS. 


of  action.     No  amendment  can  bo  permitted,  save  to  improve  the 
Statement  of  a  cause  oi  action  already  in  the  complaint. 

Whore  the  action  is  one  of  a  legal  character,  the  parties  can  not 
be  changed  ;  but  whore  the  petition  is  a  proceeding  in  rem,  there 
the  material  thing  is  the  subject  matter  of  the  suit,  and  parties  are 
a  mere  incident  to  this,  and  hence  new  parties  can  be  added  if  nec- 
essarv.  So  a  person  who  appears  in  such  a  case  to  have  no  interest 
in  the  subject  of  the  action  or  bill,  might  demur,  and  the  bill  be  at 
once  dismissed  as  to  him.  The  same  rule  would  now  undoubtedly 
be  applied  in  similar  cases.  But  to  change  the  parties  in  an  action 
on  a  legal  claim,  is  to  commence  a  new  suit  on  a  new  cause  of  ac- 
tion. 

III.  Amendments  by  leave  of  Court  generally. 

Sec.  137.  The  court  may,  before  or  after  judgment,  in  the  fur- 
therance of  justice,  and  on  such  terms  as  may  be  proper,  amend 
any  pleading,  process,  or  proceeding,  by  adding  or  striking  out 
the  name  of  any  party,  or  by  correcting  a  mistake  in  the  name 
of  a  party,  or  a  mistake  in  any  other  respect,  or  by  inserting 
other  allegations  material  to  the  case,  or,  when  the  amendment 
does  not  change  substantially  the  claim  or  defense,  by  conforming 
the  pleading  or  proceeding  to  the  facts  proved.  And  whenever 
any  proceeding,  taken  by  a  party,  fails  to  conform  in  any  respect 
to  the  provisions  of  this  code,  the  court  may  permit  the  same  to  be 
made  conformable  thereto  by  an  amendment.  Walter  v.  Bennett, 
10  K  Y.  250 ;  1  Ohio  St.  409 ;  0  lb.  61 ;  8  lb.  201,  322 ;  9  lb.  519, 
520;  10  lb.  020. 

This  section  is  very  broad  and  comprehensive,  and  allows  the 
court  seemingly  an  almost  unlimited  discretion.  If  such  had  been 
the  construction  given  to  the  code,  a  court  of  errors  would  have 
had  no  supervising  power  over  the  court  below.  The  authorities 
hereafter  cited  show  that  the  discretion  exercised  by  an  inferior 
tribunal  under  authority  of  law  is  not  a  matter  on  which  error  can 
be  assigned.  But  the  courts  of  error  have  seized  hold  of  the  ex- 
pression, in  furtherance  of  justice,  as  words  limiting  the  exercise  of 
this  discretion  to  a  legal  discretion;  and  hence  on  error. the  court 
will  examine  the  exercise  of  this  discretion,  and  if  not  exercised 
in  furtherance  of  justice,  in  the  opinion  of  the  revising  court,  the 
revising  court  will  reverse  the  judgment.  In  the  case  of  Doty  v. 
Rigour  &  Co.,  9  Ohio  St.  52G,  533,  the  judge,  in  the  opinion  of  the  court, 
says :  "  The  provision  of  the  code  under  consideration  evidently 


AMENDMENTS.  301 


contemplates  only  such  amendments  after  judgment  as  are  clearly 
in  furtherance  of  justice,  and  consistent  with  the  rights  of  all  par- 
ties interested  in  such  amendment.  And  although  the  exercise  of 
the  discretion  so  clearly  given  to  the  courts,  to  allow  amendments 
for  the  furtherance  of  justice,  must  be  presumed  to  have  been  prop- 
erly exercised,  a  supervising  court  will  always  regard  such  discre- 
tion as  a  legal  discretion,  and  carefully  look  to  the  circumstances 
and  extent  of  its  exercise.  For,  unless  such  discretion  he  cau- 
tiously and  prudently  exercised  in  the  amendment  of  records,  such 
amendments  will  rarely  be  found  to  result  in  furtherance  of  jus- 
tice.'' There  are  several  other  cases  wherein  the  Supreme  Court 
has  examined  the  action  of  an  inferior  in  allowing  amendments, 
and  clearly  recognized  the  power  of  that  court  to  supervise  the 
rulings  of  the  court  below  in  the  matter  of  amendments.  In 
United  States  v.  Collier,  6  Ohio  St.  Gl,  Bartley,  C.  J.,  says:  "Amend- 
ments at  common  law  rested  in  the  discretion  of  the  court,  and 
were  allowed  only  in  furtherance  of  justice.  And  under  the  code 
of  civil  procedure,  we  do  not  find  any  authority  extending  this 
discretion  so  far  as  to  enable  a  party,  after  he  has  failed  in  his 
action,  and  judgment  has  been  entered  against  him,  to  amend  by 
Substituting  a  form  of  proceeding  under  the  code  for  a  form  of 
proceeding  not  instituted  under  the  authority  of  the  code.  And 
if  any  warrant  could  be  found  for  such  a  stretch  of  authority,  cer- 
tain it  is,  it  would  never  be  exercised,  except  in  a  very  clear  and 
strong  case,  demanding  it  in  furtherance  of  justice." 

In  the  case  of  AVoolsey  v.  Trustees  of  Eondout,  2  Keys,  G03, 
G04,  Morgan,  J.,  says  :  "  it  may  be  admitted  that  the  original 
complaint  was  not  sufficient  to  resist  a  demurrer;  but  the  defend- 
ant having  gone  down  to  trial,  I  think  it  was  right  in  the  referee 
to  allow  the  amendment.  Although  the  objection  was  not  obvi- 
ated by  the  defendant's  neglect  to  put  in  a  demurrer,  it  was  ob- 
viated by  the  amendment.  Indeed,  the  referee  was  not  required 
to  dismiss  the  plaintiff's  complaint  on  the  defendant's  motion,  but 
might  have  proceeded  to  try  the  action  without  an  amendment. 
The  evidence  on  the  trial  having  supplied  the  delect,  the  plaintiff 
would  be  entitled  to  amend,  even  after  judgment.  Lounsbury  v. 
J'ni'dy,  18  N.  Y.  515.  If  a  defendant  will  lie  by  until  the  trial,  be- 
fore objecting  to  the  sufficiency  of  the  complaint,  I  think  it  is  a 
proper  exercise  of  discretion  in  the  court  or  referee,  under  section 
173,  to  allow  the  necessary  allegations  to  be  supplied  by  amend- 
ment, when  they  do  not  amount  to  a  new  cause  of  action." 

In  the  case  of  Shamokin  Bank  v.  Street,  1G  Ohio  St.  1,  9,  it  was 


$02  AMENDMENTS. 


held  that  a  deposit  of  money  in  lieu  of  an  undertaking  for  an  ap- 
peal laid  do  ground  for  leave  to  amend  by  filing  such  undertaking 
as  an  amendment;  the  statute  then  not  allowing  such  deposit  in 
lieu  of  the  undertaking.  The  court  say  :  "  There  certainly  was  no 
rtahing  in  any  admissible  sense  of  the  term.  The  entry  on  the 
journal  was  made  by  .Ionian,  as  clerk,  and  not  as  an  obligor  or 
Burety.  J(  is  a  mere  memorandum  of  the  fact  that  money  had  been 
in  lieu  of  an  undertaking.  It  has  none  of  the  elements 
of  an  undertaking,  such  as  the  statute  requires.  It  is  ex  parte.  It 
is  a  private  memorandum,  made  to  aid  the  memory  of  the  clerk  as 
to  the  fact  of  the  deposit.  It  was  not  the  entry  on  the  journal  that 
the  clerk  "approved."  He  approved  the  security — the  $200  depos- 
ited. The  plaintiff  had  no  intention,  and  he  took  no  steps,  to  file 
an  undertaking.  What  he  intended  was  to  deposit  money  in  lieu 
of  the  undertaking,  and,  possibly,  to  preserve  evidence  of  the  facts. 
He  fully  accomplished  all  he  intended  or  attempted.  No  doubt  he 
omitted  to  file  the  undertaking,  in  ignorance  of  the  law,  and  acted 
in  good  faith,  believing  that  a  deposit  of  money  would  bo  all  that 
was  required.  But  is  it  sufficient?  Is  the  simple  fact  that  money 
was  deposited,  with  the  general  intention  of  complying  with  the  law, 
enough  to  give  jurisdiction  ?  It  is  neither  an  undertaking  nor  a 
proceeding  for  the  purpose  of  filing  an  undertaking.  It  can  not 
be  amended  into  an  undertaking.  ...  I  know  the  general 
power  of  amendment  given  to  the  courts  by  the  code  is  very  broad, 
and  is  only  limited  by  the  justice  of  the  case.  But  the  statutory 
thing  to  be  amended  must  exist  before  the  power  can  be  exercised. 
Under  the  present  statute,  an  imperfect  deposit  of  money,  or  steps 
taken  to  make  it,  could  be  amended  or  aided.  Before  its  passage, 
it  was  onty  an  undertaking,  or  steps  taken  to  give  one,  that  could 
be  so  amended  or  aided."  It  had  been  before  decided,  in  Irwin  v. 
Bank  of  Bellefbntaine,  6  Ohio  St.  81,  that  an  imperfect  and  de- 
fective undertaking  of  appeal  was  a  proceeding  under  the  code, 
which  might  be  amended  by  giving  a  proper  and  legal  one,  and 
thus  perfect  the  appeal.  Vide  also  State  v.  Bowman,  10  Ohio,  445. 
This  case  admits  that,  in  order  to  justify  an  amendment,  there 
must  be  something  to  amend.  In  the  case  of  Comm'rs  of  Dela- 
ware v.  Andrews,  18  Ohio  St.  49,  the  court  held  that,  under  a 
leave  to  amend,  a  new  cause  of  action  could  not  be  interposed,  and 
if  it  was,  it  might  be  stricken  out  on  motion  as  impertinent  and 
redundant  matter.  This  was  an  action  on  a  bond.  The  plaintiff 
got  leave  to  amend,  and  the  court  say :  "  But  if  the  amended 
petition  be  construed  as  having,  in  addition  to  an  amended  cause 


AMENDMENTS.  303 


of  action  on  the  bond,  another  cause  of  action  interlarded  with 
and  masked  under  that,  it  can  hardly  be  chained  that  the  court 
envd  in  sustaining  the  defendant's  motion  to  strike  out  all  the 
matter  that  Avas  redundant  to  the  action  on  the  bond."  In  this 
case-,  it  was  sought  to#  introduce  a  cause  of  action  barred  by  the 
statute  of  limitations  at  the  time  the  amendment  was  made.  This 
^liows  that  the  amendments  provided  for  in  this  section  must 
be  limited  to  improving  the  statement  of  the  cause  of  action 
already  defectively  set  forth.  To  insert  a  new  cause  of  action  is 
not  to  amend,  and  can  not  be  made  an  amendment,  The  ruling 
of  the  court  in  the  above  case  at  once  expurgated  the  petition  of 
matter  not  material  to  the  action  on  the  bond,  and  was  also  equiv- 
alent to  a  refusal  to  so  far  extend  the  leave  to  amend  as  to  permit 
the  plaintiffs  to  ingraft  on  the  original  cause  of  action  a  new  and 
distinct  cause  of  action  that  was  barred  by  the  statute  of  limita- 
tions. The  bond  in  this  ease  was  held  to  be  illegal,  and  the  amend- 
ment sought  to  introduce  a  cause  of  action  founded  upon  a  fraudu- 
lent obtaining  the  money,  to  secure  the  payment  of  which  the 
bond  was  given.  This  case  would,  therefore,  seem  to  hold  that 
Where  a  suit  is  brought  upon  a  written  contract,  and  a  recovery 
can  not  be  had  on  the  written  contract,  you  can  not  by  amendment 
introduce  a  new  cause  of  action  founded  on  the  consideration  of 
the  written  agreement.  The  two  causes  of  action  are  separate  and 
distinct,  and  could  not  both  be  stated  in  the  same  petition,  as  it 
would  be  stating  one  cause  of  action  in  two  forms.  There  can  now 
be  but  one  statement  of  a  cause  of  action;  and  hence  the  pleader 
must  elect  which  remedy  he  will  resort  to.  The  pleader  can  no 
longer  declare  on  a  note,  and  add  a  count  for  money  had  and  re- 
el :  he  has  hut  one  cause  of  action,  and  he  must  elect  which 
he  will  pursue,  if  the  note  is  void,  then  his  remedy  is  for  the 
money  loaned,  or  paid  for  the  goods  sold  and  delivered,  or  what- 
ever may  he  the  consideration  of  (he  note.  II'  he  can  not  insert 
the  two  counts  originally  in  his  petition,  how  can  he  insert  the 
second,  when  beaten  on  the  firsl  by  way  of  amendment  ?  It  would, 
therefore,  seem  conclusively  and  logically  to  follow  that  no  Legally 
new  cause  of  action  can  be  inserted  by  way  oi  amendment  under 
the  code,  though  the  causes  may  relate  to  the  same  subject  matter. 
This  would  he  :. Mowing  indirectly  what  can  not  be  done  directly, 
to  wit.  the  statemenl   in  the  same  petition  of  a  Bingle  cause  of 

action  in  a  double   form  or  aspect,  so   that    if  there   is  a   failure  on 
one    a   recovery  may   be   had   on    the   other.      Whether  it   is  w'lBQ  to 

have  adopted  bo  restricted  a  rule  of  pleading  or  not,  is  not  a  ques- 


304  AMENDMENTS. 


tion  for  the  court,  but  for  legislation.  Such  is  the  rule  of  the  code, 
and  it  should  be  rigidly  adhered  to,  if  there  is  to  beany  uniformity 
in  the  practice. 

In  an  action  against  a  firm  by  its  firm  name,  not  being  able  to 
ascertain  the  names  of  the  members  of  the  firm,  one  of  the  firm 
entered  his  appearance  and  set  up  the  goods  belonged  to  the  firm; 
on  the  trial  by  a  referee  ho  found  in  favor  of  the  defendant.  After 
the  prosecution  of  a  petition  in  error,  the  court  below  allowed  the 
insertion  of  the  names  of  the  other  two  members  of  the  defendant 
firm.  "These  defendants,"  say  the  court,  "were  prosecuted  in 
their  firm  name,  he  alleging  in  his  complaint  that  the  names  of  the 
individual  members  of  the  firm  were  unknown  to  him.  Freder- 
icks only  appeared  and  answered  in  the  first  instance,  claiming 
the  goods  in  behalf  of  his  firm.  He  also  put  in  a  supplemental 
answer,  in  which  he  claims  judgment  in  his  own  favor  for  the 
value  of  the  goods,  and  not  in  favor  of  himself  and  his  copartners 
individually.  After  judgment  the  defendants  were  allowed  by  the 
court,  at  general  term,  to  amend  by  entering  an  appearance  nunc 
pro  tunc  for  the  other  two  partners,  and  to  amend  the  supplemental 
answer  so  as  to  make  it  a  claim  in  behalf  of  all  the  members  of 
the  firm  individually,  and  a  demand  for  judgment  in  their  favor. 
It  does  not  appear  from  the  record  how  many  of  the  defendants 
had  been  served  with  process,  nor  why  the  two  who  were  allowed 
to  appear  so  as  to  bind  them  by  the  judgment,  did  not  appear  at 
an  earlier  stage  of  the  proceedings.  .  .  .  The  case  had  been 
fully  tried  upon  its  merits,  and  the  amendment  was  only  in  further- 
ance of  justice.  And  when  the  question  is  one  of  a  common  or 
general  interest  of  several  persons,  one  or  more  may  be  allowed  to 
sue  or  defend  for  the  benefit  of  the  whole.  Code,  sec.  119.  It 
was  wholly  unnecessary  to  bring  in  the  firm  of  Kersel  Brothers. 
They  did  not  pretend  to  have  any  title  to  the  property,  or  right 
of  control  over  it.  But  even  if  they  were  to  be  regarded  as  the 
general  owners,  the  defendants,  who  were  in  fact  consignees,  could 
recover  the  value  of  the  property  converted  by  a  stranger."  So  it 
was  held  in  Ackley  v.  Tarbox,  31  N.  Y.  564,  that  in  an  action 
in  the  name  of  the  husband  and  wife  for  damages  to  her  sepa- 
rate property,  the  joining  of  the  husband  is  unnecessary,  and 
under  section  173  of  the  code  it  may  be  stricken  out  of  the  plead- 
ings and  record  at  anytime,  either  before  or  after  judgment.  "As 
soon,"  say  the  court,  "  as  the  objection  was  taken  that  the  husband 
was  an  unnecessary  party,  as  he  clearly  was,  it  was  the  duty  of  the 
court  to  have  stricken  his  name  from  the  proceedings  in  the  action. 


AMENDMENTS.  305 


It  can  now  be  done,  and  the  judgment  stand  as  it  ought,  a  judg- 
ment in  favor  of  the  wife  for  injury  to  her  personal  property." 

In  Hollister  v.  Judges  of  District  Court,  8  Ohio  St.  201,  Bartley, 
C.  J.,  says:  '•  Every  court  of  record  has  a  supervisory  and  protect- 
ing charge  over  its  records  and  the  papers  belonging  to  its  files, 
and  may  at  any  time  direct  the  correction  of  clerical  errors,  or  the 
substitution  of  papers  in  case  the  originals  are  purloined  or  lost; 
and,  in  the  exercise  of  the  same  authority,  in  case  the  records  or 
files  should  be  fraudulently  or  otherwise  improperly  altered  or  de- 
faced, may  direct  their  correction  and  restoration  to  their  original 
condition.  And  in  making  such  corrections,  the  clerk  is  under 
the  control  and  authority  of  the  court.  .  .  .  The  personal 
knowledge  of  the  judge  is  not  essential  to  the  correction  of  a  cler- 
ical error.  He  may  inquire  into  the  matter  and  inform  himself  by 
competent  evidence,  and  act  upon  that,  as  he  acts  upon  proof 
given  in  court  in  the  performance  of  other  judicial  acts." 

So  in  Doty  v.  Eigour  &  Co.,  9  Ohio  St.  52G,  it  was  held  that  upon  ap- 
plication made  to  the  Court  of  Common  Pleas,  or  notice  duly  given 
to  the  adverse  party,  an  amendment  of  the  record,  in  a  case  in 
which  judgment  had  been  rendered  at  a  former  term  of  that  court, 
may  be  made  under  section  137  of  the  code,  by  changing  the 
names  of  the  drawers  of  the  bill  of  exchange  as  expressed  in  the 
petition,  so  as  to  make  the  same  conform  in  the  petition  to  the 
copy  thereto  attached,  and  to  the  bill  on  which  judgment  was  ren- 
dered  ;  and  such  an  amendment  ma}^  be  made  after  proceedings  in 
error  on  the  record  may  have  been  commenced.  After  the  amend- 
ment in  the  court  below,  a  corrected  copy  of  the  record  may  be 
obtained,  and  the  case  must  be  disposed  of  on  the  record  so  cor- 
rected. 

In  Corning  v.  Corning,  6  N.  Y.  97,  the  action  was  for  an  assault 
and  battery,  and  damages  stated  at  $2,000 ;  on  a  trial  a  verdict 
was  rendered  for  $3,000  damages ;  the  verdict  was  objected  to  by 
defendant,  but  the  judge  ordered  the  complaint  to  be  amended  by 
increasing  the  damages  demanded  therein  to  $3,000.  At  general 
term,  the  court  reversed  the  order  granting  the  amendment,  or- 
dered that  the  judgment  be  reversed  and  a  new  trial  had,  unless 
the  plaint  ill'  should  remit  the  excess  of  damages  over  the  amount 
Stated  in  the  complaint.  The  excess  was  remitted,  and  defendant 
went  to  the  Court  of  Appeals.  "  Before  the  adoption  of  the  oode," 
saya  Jewett,  J.,  who  declared  the  opinion  of  the  court,  "  it  was 
well  settled  thai  the  Supreme  Court  had  no  power  to  allow  an 
vol.  i—20 


306  AMENDMENTS. 


amendment  of  a  declaration  after  verdict,  by  increasing  the  amount 
of  damages  claimed  to  correspond  with  the  amount  of  the  verdict, 
except  upon  the  condition  that  the  plaintiff  relinquished  the  ver- 
dict, paid  the  defendant's  costs  of  the  trial,  and  consented  to  a  new 
trial.  Dix  v.  Dej^,  3  Wend.  356 ;  Curtiss  v.  Lawrence,  17  Johns. 
111.  The  code  has  not  changed  this  rule.  The  cases  show  also 
that  the  plaintiff  had  a  right  to  enter  a  remittitur  for  the  excess  of 
damages  found  by  the  jury  over  and  above  the  amount  claimed 
by  the  complaint,  and  to  enter  a  judgment  for  the  amount  so 
claimed.  But  if  the  plaintiff  had  made  up  a  record,  and  taken 
judgment  therein  for  the  whole  amount  of  the  verdict,  as  the  dam- 
ages claimed  by  the  complaint  were  less  in  amount  than  the  ver- 
dict, it  would  have  been  erroneous.  When  the  court  at  general 
term,  on  appeal,  reversed  the  order,  I  think  it  had  power,  and  that 
it  was  right  to  reverse  the  judgment,  and  to  restore  the  plaintiff  to 
the  rights  he  had  at  the  time  the  order  was  made,  to  remit  the  excess 
of  the  verdict,  and  to  enter  a  judgment  under  the  complaint  for 
the  balance,  and  refuse  a  new  trial  in  the  event  of  such  remittitur." 
Pickwood  v.  Wright,  1  H.  Bl.  643 ;  5  Halstead,  222. 

A  plaintiff,  who  obtains  leave  to  amend  his  petition,  must  file 
his  amendment  within  the  time  prescribed  or  not  at  all,  unless  fur- 
ther time  is  given.     Haight  v.  Shuck,  6  Kan.  192. 

In  an  action  for  the  sale  of  real  estate  to  pay  balance  of  pur- 
chase money,  the  summons  was  indorsed  that  plaintiff  demanded 
judgment  for  a  certain  sum  and  interest  thereon.  The  defendant 
did  not  appear;  the  plaintiff  obtained  leave,  to  amend  the  indorse- 
ment by  adding  that  an  order  for  sale  of  land  was  prayed  for.  The 
court  held  that  the  indorsement  on  the  summons  could  not  be 
amended,  where  there  was  no  appearance  of  defendant,  and  re- 
versed the  judgment.  Watson  v.  McCartney,  1  Neb.  132.  The 
court  said  no  indorsement  was  necessary,  but  that  if  one  was 
made,  it  should  be  sufficiently  complete  to  have  advised  the  defend- 
ant of  all  the  relief  prayed  for. 

Where  a  suit  was  brought  in  the  name  of  the  Bank  of  Havana 
against  Magee,  and  it  turned  out  on  the  trial,  that  the  Bank  of 
Havana  was  not  a  corporation,  but  the  name  under  which  Charles 
Cook  did  a  banking  business,  the  court  held  that  "when  it  appeared 
on  the  trial  that  the  plaintiff's  attorney  had  fallen  into  the  mistake 
of  stating  the  name,  which  Mr.  Cook  had  given  to  his  bank,  as  the 
creditor  of  Wickham  and  as  the  plaintiff  in  the  suit,  instead  of  his 
proper  name,  a  plain  case  was  presented  for  an  amendment,  uucler 
section  173  of  the  code.     .     .     .     It  is  apparent  from  the  plead- 


AMENDMENTS.  307 


ings  that  the  parties  understood  each  other  perfectly,  as  to  the  credi- 
tor who  was  seeking  to  impeach  the  conveyance  to  Mr.  Magee.  Both 
agreed  that  it  was  the  individual  or  individuals  transacting  business 
under  the  name  of  the  Bank  of  Havana,  and  both  were  equally  in 
error  in  believing  that  the  name,  which  was  used  to  designate  the 
plaintiff,  was  one  under  which  the  creditor  might,  consistently 
with  the  forms  of  law,  prosecute  his  suit  in  court.  This  belief  was 
no  doubt  founded  on  the  assumption  that  an  individual  banker, 
issuing  circulating  notes  pursuant  to  the  general  banking  law, 
was  a  corporation.  The  duty  of  the  court,  when  the  objection 
was  taken,  was  to  order  the  pleadings  to  be  amended.  It  was  au- 
thorized not  only  to  correct  a  mistake  in  the  name  of  a  party,  but 
in  any  other  respect,  and  the  amendment  which  the  case  called  for, 
would  fall  within  either  branch  of  that  provision." 

The  original  petition  in  Spice  v.  Steinruck,  14  Ohio  St.  213,  was 
for  having  wrongfully,  maliciously,  and  without  probable  cause  pro- 
cured the  arrest  of  the  defendant  in  error,  after  summons  served 
and  before  judgment  in  a  civil  action,  and  for  having,  in  like  man- 
ner, caused  his  arrest  and  imprisonment  upon  execution  after  judg- 
ment. The  defendant  below  put  in  a  general  denial,  and  on  the 
trial  the  plaiutiff  below  on  leave  amended  his  petition  by  omitting 
the  allegation  of  the  want  of  probable  cause,  and  alleging  that 
the  arrest  was  illegally  made  with  force  by  the  defendants 
below.  The  court  then  required  the  defendants  to  elect  whether 
to  withdraw  a  juror  and  to  have  another  trial,  or  whether  the 
verdict  should  be  taken  of  the  present  jury;  defendants,  under 
protest,  amended  their  answer,  and  the  verdict  of  the  jury  was 
taken.  Peck,  C.  J.,  says:  -Leave  to  make  this  amendment  was 
solicited,  and  allowed  after  all  the  proof  had  been  heard  by  the 
court,  and  upon  the  alleged  ground  that  the  amended  petition 
would  conform  the  pleadings  to  the  facts  proved.  It  was  a  motion 
addressed  to  the  sound  discretion  of  the  court  which  had  heard  the 
testimony,  and  could,  therefore,  determine  its  legal  tendencies,  and 
if.  in  its  opinion,  there  was  legal  testimony  tending  to  prove  the 
case  made  by  the  petition  as  proposed  to  be  amended,  and  that 
sach  amendment  would  be  in  furtherance  of  justice,  it  was  the 
duty  of  the  court,  under  section  137  of  the  code  of  civil  proceduro, 
to  permil  it  to  be  made  under  such  guards  and  restriction,  as  was 
•  and  proper  for  the  protection  of  the  defendants,  provided  It 
did  not  change  substantially  the  claim  of  the  plaintiff.  .  .  •  The 
substantial  claim  in  both  petitions  is  the  same — damages  for  his 
wrongful  arrest  and  detention  under  process  issued  at  the  instance 


308  AMENDMENTS. 

of  the  defendants.  The  quo  mode — the  precise  manner,  in  which 
the  wrong  was  inflicted,  whether  "by  the  instrument  of  a  void 
process,  or  of  a  process  which  had  been  abused  and  perverted,  was 
of  secondary  importance."  The  court,  therefore,  held  the  amend- 
ment rightfully  made,  and  in  my  opinion,  the  real  cause  of  action 
was  not  changed  ;  the  only  change  was  in  the  form  of  stating  tho 
arrest,  and  not  in  the  identity  of  the  cause  of  action.  The  amend- 
ment simply  relieved  the  plaintiff  from  establishing  one  fact  as  a 
part  of  his  case,  and  imposed  upon  him  the  duty  of  proving 
another  not  required  by  the  original  petition,  but  still  it  left  the 
real  gravamen  of  the  complaint  alike  common  to  both.  "  The  code," 
continues  the  judge,  "abolished  the  varied  forms  of  civil  actions 
theretofore  in  use,  and  established  one  general  form  applicable  alike 
to  all  causes  of  complaint.  How,  then,  can  it  be  said  that  an 
amendment,  which  still  demands  damages  for  the  wrongful  arrest 
set  forth,  and  complained  of  in  the  original  petition,  and  only 
varies  from  it  in  its  statement  of  the  manner  in  which  that  arrest 
was  effected,  creates  such  a  substantial  change  in  the  claim,  as  pre- 
cludes its  being  made  under  section  137.  The  proposed  amend- 
ment was  clearly  in  furtherance  of  justice."  The  court  seem  to 
place  this  amendment  under  section  137,  which  provides  for  amend- 
ment before  or  after  judgment ;  but  does  it  not  come  under  section 
132,  which  provides  for  amendments  during  the  trial,  in  case  the 
variance  is  not  material  under  section  131  ?  The  amendment  in 
this  case  was  made  on  the  trial,  and  was  made  to  meet  an  un- 
expected change  in  the  evidence  in  a  matter  not  material  to  the 
real  contention  between  the  parties. 

In  Butcher  v.  Bank  of  Brownsville,  2  Kansas,  70,  a  motion  was 
made  to  strike  out  the  petition,  because  the  word  "petition"  did 
not  follow  the  names  of  the  parties,  and  then  leave  was  granted  to 
amend  by  adding  the  word  "  petition  ;"  the  court  held  that  this 
amendment  should  be  allowed  at  any  time  and  without  delaying 
the  suit;  held  further,  that  a  refusal  to  strike  out  for  that  cause  was 
no  ground  of  error.  The  court  say  :  "  The  action  of  the  court  in 
permitting  a  party  to  amend  by  inserting  the  word  '  petition,' 
which  had  been  omitted,  was  so  manifestly  correct  that  we  need 
not  argue  it.  By  the  code  it  is  made  necessary  that  the  word  shall 
follow  the  names  of  the  parties  to  the  suit  in  the  caption.  When 
omitted,  the  court  should  allow  an  amendment  at  any  time  without 
delaying  the  suit,  and  ought  not  to  sustain  a  motion  to  strike  it 
from  the  files  without  first  at  least  giving  an  opportunity  to  amend. 
The  court,  in  every  stage  of  the  action,  must  disregard  any  error 


AMENDMENTS  309 


or  defect  in  the  pleadings,  or  proceedings,  which  does  not  affect 
the  substantial  rights  of  the  adverse  party,  and  no  judgment  shall 
be  reversed  or  vacated  by  reason  of  such  defect  (see  page  8  of  code). 
We  do  not  happen  to  see  how  it  would  affect  the  substantial  rights 
of  the  adverse  party,  whether  the  amendment  was  made  or  not." 
This  opinion  is  founded  in  good  sense  and  in  the  spirit  of  the  code. 
That  absurd  provision,  legislating  for  the  merest  matter  of  form,  is 
as  bad  as  the  old  objections  raised  by  a  special  demurrer.  The  code, 
wbich  seeks  to  regard  only  the  merits  of  a  case,  has  introduced  an 
immaterial  matter  as  a  matter  of  law,  which  has  been  more  abused 
than  any  matter  of  special  demurrer  ever  was.  If  by  accident  the 
word  is  omitted,  a  motion  is  made  for  the  mere  purpose  of  delay, 
and  our  courts  grant  a  continuance.  This  decision  is  the  correct 
one ;  it  is  no  matter  on  which  an  issue  can  be  taken,  and  hence  is 
no  ground  for  consideration  in  the  preparation  of  an  answer. 

Thei'e  is  in  England  an  act  allowing  amendments  to  the  extent 
our  act  does.  A  question  arose  under  this  act  under  the  following 
circumstances :  An  action  had  been  brought  in  the  name  of  John 
Clay.  It  was  afterward  discovered  that  John  Clay  was  dead,  and 
a  motion  made  that  his  executors  be  made  parties  plaintiff  instead 
of  John  Clay.  Kelly,  C.  B. :  "It  may  perhaps  be  regretted  that 
the  common-law  procedure  act  has  not  authorized  the  substituting 
of  one  plaintiff  for  another,  or  one  defendant  for  another,  in  a  case 
like  this;  but  we  have  no  power,  either  at  common  law  or  by 
statute,  to  do  what  is  asked.  Since  the  common-law  procedure  act 
of  1852,  by  section  34  and  following  sections,  in  express  terms 
enables  the  court  to  add  or  strike  out  any  number  of  plaintiffs,  and 
by  13Gth  and  following  sections  gives  a  similar  power  of  allowing 
representatives  of  a  deceased  plaintiff  to  continue  the  suit,  but 
contains  no  provision  in  any  part  of  it  for  substituting  one  plaintiff 
I'll- another,  one  suing  in  a  representative  capacity  for  a  deceased 
man  who  never  was  a  party,  I  can  not  but  think  that  no  such 
power  was  meant  to  be  given.'' 

Bramwell,  B. :  "I  am  of  the  same  opinion.  I  think  such  a  sub- 
stitution was  not  within  the  intention  of  the  act.  This  is  noi  a 
case  where  it  can  be  said  thai  persons  not  formally  entitled  to  be 
parties  have  Wrought  an  action  to  try  certain  matters  perfectly 
well  known  to  both  sides,  which  is  the  explanation  of  Blake  v. 
ham. 7  II.  &  X.  t65,  and  La  Banca  Nazionale  v.  Hamburger,  2  H.  & 
('.  330.  But  here  the  plaintiff  is  altogether  wrong,  or  rather  there 
is  do  plaintiff.  The  man  in  whose  name  the  action  was  brought 
was  < li-;t<l      It  can  not  be  said  that  this  is  an  amendment  ■  necessary 


310  AMENDMENTS. 


for  the  purpose  for  determining  in  the  existing  suit  the  real  ques- 
tion in  controversy  between  the  parties;'  nor  is  this  an  application 
made  between  the  parties  to  the  suit,  for  there  is  no  plaintiff,  and 
therefore  no  existing  suit,  and  no  question  in  controversy  between 
the  parties.  If  we  could  see  some  person  suing  who  had  a  bene- 
ficial interest  in  the  claim  made,  though  not  legally  entitled  to  sue, 
tht'  case  would  he  within  the  principle  of  the  authorities  cited. 
But  the  power  of  amendment  is  limited  to  cases  where  there  was 
originally  a  party  suing,  possessed,  though  with  a  variety  in  legal 
description,  of  the  same  interest  with  the  party  to  be  substituted." 
So  the  court  held  the  amendment  could  not  be  made,  and  the  same 
ruling  is  applicable  to  the  code.  The  English  act  goes  further 
than  our  code  as  to  substitution  of  parties,  and  hence  the  remark 
of  Bramwell,  B.,  would  not  be  justified  by  our  code.  Our  code  is 
limited  to  amendments,  and  adding  or  striking  out  the  name  of  any 
party,  or  by  correcting  a  mistake  in  the  name  of  a  party.  Here 
is  no  power  of  substitution  of  one  party  for  another.  The  first 
clause  relates  to  removing  parties  not  interested  in  the  suit,  and  in 
adding  others  that  are  necessary  parties,  and  the  last  is  merely 
(hanging  a  mistake  made  in  the  name  of  the  real  party  intended. 
The  English  statute  seems  to  go  further,  and  allow  a  substitution 
of  one  party  for  another  under  certain  restricted  circumstances. 

The  English  statute  also  authorizes  amendments,  so  as  to  make 
the  pleading  conform  to  the  evidence.  An  action  was  brought 
against  A  and  B.  A  did  not  appear,  and  allowed  the  case  to  go  by 
default.  On  the  trial,  it  appeared  by  the  evidence  that  B,  who 
had  pleaded  never  indebted,  was  solely  liable,  A  not  being  a  con- 
tracting party.  The  judge  ordered  the  record  to  be  amended  by 
striking  out  the  name  of  A,  and  directed  a  verdict  against  B.  On 
a  rule  for  a  nonsuit,  which  had  been  reserved  at  the  trial,  the  court 
held  the  amendment  right.  Lord  Campbell  said  :  "  I  am  of  opin- 
ion that  there  should  be  no  rule  in  this  case.  The  statutes  giving 
power  of  amendment  are  most  salutary  remedial  statutes,  and 
ought  to  receive  a  liberal,  or,  at  all  events,  a  fair  construction.  I 
think  that  the  name  of  the  defendant  was  properly  struck  out. 
When  the  name  was  struck  out,  the  judgment  and  everything  de- 
pendent on  that  name  became  as  if  it  never  had  existed." 

Earle,  J. :  "  But  for  the  judgment  by  default,  it  is  not  disputed 
that  the  name  of  George  Major  Humfries  ought  to  have  been 
struck  out ;  and  the  judgment  by  default  may  be  got  rid  of  for  any 
reason  making  it  just  to  do  so." 

Crampton,  J. :  "  There  can  be  no  doubt  that  this  case  is  within 


AMENDMENTS.  311 


the  enacting  part  of  section  37,  by  which  a  misjoinder  may  be 
amended  as  a  variance  at  the  trial.  I  find  no  words  expressing  a 
restriction  in  cases  where  there  has  been  a  judgment  by  default. 
We  should  not  introduce  into  the  statute  a  restriction  which  the 
legislature  have  not  expressed,  and  which,  I  believe,  they  never 
contemplated."  Greaves  v.  Humphries,  4  Ellis  &  Blackburn,  551 ; 
S2E.  C.  L.  851. 

It  was  clearly  in  furtherance  of  justice  to  strike  out  a  name 
when  it  was  shown  that  the  person  was  clearly  not  liable,  though 
he  had  not  answered.  It  would  have  been  unjust  to  have  ren- 
dered a  judgment  against  him,  when  it  was  shown  that  he  was  in 
no  ways  liable. 

In  the  case  of  May  v.  Footner,  5  E.  &  Bl.  508  ;  S.  C,  85  E.  C.  L. 
505,  the  action  was  trespass  for  breaking  a  close.  The  dispute  was 
as  to  which  of  two  adjoining  land-holders  the  legal  title  to  a  lane 
running  between  them  belonged.  On  the  trial  it  appeared  that  the 
land  of  plaintiff  was  in  the  possession  of  a  tenant ;  and  thereupon 
the  court  amended  the  declaration  or  count  into  one  for  an  injury 
to  the  reversion.  A  motion  was  made  under  leave  reserved  at  the 
trial  to  enter  a  nonsuit.  Lord  Campbell,  C.  J.:  "I  am  of  the 
opinion  that  there  should  be  no  rule  in  this  case.  Authority  to 
amend  is  given  to  a  judge  at  Nisi  Prius  by  the  common-law  pro- 
cedure act,  1854,  17  and  18  Vict.,  c.  125,  sec.  96,  which  enacts  that 
'  all  such  amendments  as  may  be  necessary  for  the  purpose  of  de- 
termining in  the  existing  suit  the  real  question  in  controversy  be- 
tween the  parties,  shall  be  made,  if  duly  applied  for.'  Now,  here 
the  suit  remains  the  same,  though  the  form  is  altered ;  and  the 
amendment  was  necessary  for  the  purpose  of  determining  the  real 
question  in  controvery.  There  was,  therefore,  no  excess  of  au- 
thority;  and  Mr.  Smith  does  not  suggest  that  any  injustice  will  be 
done  by  this  exercise  of  the  judge's  authority."  Coleridge,  J.: 
"  The  real  question  in  controversy  in  this  suit  was  not  whether  the 
plaintiff  was  reversioner  or  occupier  of  the  field  of  which  he  was 
freeholder,  but  whether  the  spot  in  question  was  parcel  of  the 
plaintiff's  freehold  or  not."     Vide  also  89  E.  C.  L.  44. 

The  ease  of  Parsons  v.  Alexander,  5  E.  &  B.  2(53;  S.  C,  85   Bng. 
C.  L.  262,  was  an  action  on  a  check  on  a  banker,  made  by  the  dc 
fendant,  and  delivered  to  plaintiff  and  not  paid,  for  money  lent 

and  on  an  account   stated.      Pleas :   As  to  first  count  that  the   de- 
fendant,  did    not.    make    the    ehcclc;   as    to    the    account    stated    ami 

check, thai  the  said  accounts  were  stated  of  and  concerning  the 
[same  money  which  formed  the  consideration  of  the]  said  draft  or 


312  AMENDMENTS. 


order  in  the  first  count  mentioned;  and  that  the  account  was  of 
money  lost  at  gaming.  To  the  residue  of  declaration,  never  in- 
debted. On  the  trial  before  Earle,  J.,  the  judge  told  the  jury  that 
if  the  I.  O.  XJ.  was  given  for  money  won  by  gaming,  to  find  for  de- 
fendant, which  the  jury  did.  The  check  was  not  stamped  and 
hence  could  not  have  been  given  in  evidence. 

On  an  argument  for  a  new  trial,  Earle,  J.,  said  :  "  In  the  present 
case  the  plaintiff  sues  on  an  account  stated,  proved  by  I.  O.  U- 
given  before  any  check  or  negotiable  instrument  was  in  existence , 
so  that  the  point  you  now  raise  is  irrelevant."  Counsel  replied 
such  is  not  the  plea  which  the  jury  have  found.  Earle,  J.:  "I  had 
at  the  trial  observed  the  form  of  the  pleadings,  and  thought  the  de- 
fendant was  in  some  danger,  as  his  second  plea  was  not  proved  as 
pleaded  1  said  in  the  hearing  of  both  parties  that, .if  amendments 
were  required,  I  should  make  them.  Neither  side  asked  for  an 
amendment ;  and  all  parties  went  on  as  if  the  plea  had  been  con- 
formable to  the  actual  case  as  appearing  on  the  evidence.  I  said 
what  I  did  in  the  interest  of  the  defendant,  whose  case  seemed  to 
me  such  as  to  require  a  judge  to  give  him  every  fair  assistance. 
But  after  this  was  done,  I  think  that  to  hold  the  plaintiff  to  the 
form  of  the  plea  would  be  giving  the  defendant  unfair  assistance." 
Counsel  replied,  the  plea  might,  no  doubt,  have  been  amended  at 
the  trial,  but  it  was  not.  Lord  Campbell,  Ch.  J. :  "  The  courts 
have  now  power  at  all  times  to  amend  all  defects  and  errors;  and 
it  is  their  duty  to  make  all  such  amendments  as  may  be  necessary 
for  determining  the  real  controversy  between  the  parties.  What 
passed  at  the  trial  shows  that  this  is  such  an  amendment ;  there- 
fore, we  order  of  our  own  authority,  and  not  by  consent,  that  the 
plea  be  now  amended,  so  as  to  make  the  issue  correspond  to  that, 
which  was  really  tried  before  the  jury."  And  thereupon  the  plea 
was  amended  by  inserting  the  words  in  brackets,  and  the  case  went 
on  for  argument  and  decision  under  the  gaming  act,  and  the  rule 
was  discharged.  Here  the  court,  on  a  motion  for  a  new  trial, 
amended  the  pleadings  so  as  to  make  them  correspond  with  the 
case  actually  tried.      Vide  also  101  Eng.  C.  L.  728. 

These  cases  will  be  safe  guides  for  the  court  in  the  construction 
of  the  code,  which  substantially  gives  the  same  powers  to  our 
courts.  These  amendments  were  made,  too,  without  costs,  as  the 
amendment  was  made  simply  to  make  the  pleadings  correspond 
with  the  case  presented  in  the  evidence  of  the  parties.  In  such  a 
case  there  are  no  extra  costs  made,  and  none  should  be  charged  to 
a  party  in  such  circumstances.     It  is  the  duty  of  the  court  to  order 


AMENDMENTS.  313 


the  amendment  made,  and  surely  no  costs  can  be  taxed  to  a  party, 
when  the  court  is  bound  to  order  the  amendment ;  nor  was  a  contin- 
uance granted,  it  being  apparent  to  the  court  that  the  parties  have 
really  tried  the  real  contention  between  them.  In  such  a  case,  the 
court  knows  that  no  party  has  been  misled  or  deceived  in  the  issue. 
Parties  have  no  right  to  lie  by  for  a  catch,  when  they  and  their 
counsel  know  what  the  real  dispute  is  and  can  prepare  to  meet  it. 
It  is  a  fraud  on  the  court,  and  an  obstruction  of  justice  by  occupy- 
ing the  time  of  the  court  with  two  trials,  when  the  case  might  have 
closed  in  one.  I  know  such  things  are  done,  but  it  is  no  credit  to 
any  one,  and  the  courts  would  do  well  to  refuse  costs,  or  even  a  con- 
tinuance for  the  purpose  of  putting  a  stop  to  it. 

In  Lambert  v.  Mustard,  18  Ohio  St.  419,  it  was  held  that  it  was 
competent  for  the  Court  of  Common  Pleas  under  section  534  of  the 
code,  part  3,  to  modify  at  a  subsequent  term  the  entry  of  a  verdict 
and  judgment  in  a  civil  action,  so  as  to  show  that  the  judgment  was 
in  fact  rendered  on  June  16,  though  not  recorded  until  the  19th,  so 
as  to  make  a  second  trial  bond  good,  which  was  dated  on  lGth,  and 
given  after  the  decision  of  the  cases. 

These  authorities  maintain  the  original  construction  given  to 
this  section  in  the  first  edition  of  this  work  ;  and  hence  the  author- 
ities which  follow  will  be  useful  guides  in  practice  as  to  what  can 
and  can  not  be  done  under  the  name  of  amendment. 

The  courts  are  liberal  in  allowing  amendments  at  the  trial  in 
order  to  conform  the  pleading,  to  the  evidence.  Van  Duyer  v. 
Howe,  21  K  Y.  531  ;  Bank  of  Havana  v.  Magee,  20  N.  Y.  355  ; 
Hall  v.  Gould,  13  N.  Y.  127  ;  Corning  v.  Corning,  G  N.  Y.  97  ; 
Wood  v.  Wood,  26  Barb.  356  ;  Grasper  v.  Adams,  24  lb.  287  ;  Hunter 
V.  H.  Eiver  Iron  and  M.  Co.,  20  Barb.  493 ;  Dauchy  v.  Tyler,  15 
How.  399  ;  Fox  v.  Hunt,  8  lb.  12 ;  Getty  v.  H.  E.  E.  E.  Co.,  6  lb. 
270. 

An  action  was  commenced  for  false  imprisonment ;  failing  to 
sustain  it,  the  plaintiff  sought  to  amend  it  by  adding  a  count  for 
malicious  prosecution  ;  held  that  he  could  not  do  so.  Waldhcimu. 
Sickel,  1  Hilton,  45. 

It  is  improper  upon  the  trial  for  a  judge  or  referee  to  allow  an 
amendment,  which  will  in  effect  amount  to  a  new  cause  of  action 
or  defense.  Ransom  v.  WItmore,  '■'>'.)  Barb.  104;  Hunt,  v.  Hudson 
Riv.  Fire  Ens.  (Jo.,  2  Duer,  481 ;  Tagen  v.  Davison,  2  Duer,  153; 
N.  Y.  Marbled  Iron  Co.  v  Smith.  I  Duer,  362;  Grosvenor  v.  Ai 
lantic  In-.  Co.,  1  Bosw.  169;  Union  Bank  v.  Mott,  L8  How.  506 ; 
Robins  v.  Richardson,  2  Bosw.  248;  Ford  v.  Ford,  35   How.  .'i-ii ; 


314  AMENDMENTS. 


S.  C,  53  Barb.  525  ;  Vibbardu.  Eodcrick,  51  lb.  G16;  Woodruff  v. 
Dickie,  5  Rob.  G19  ;  Van  Syckels  v.  Perry,  3  Eob.  021 ;  Bigalow  v. 
Dunn,  53  Barb.  570;  Bailey  v.  Eay,  50  lb.  110  ;  Van  Ness  v.  Bush, 
14  Abb.  3G  ;  Daguerre  v.  Orser,  3  Abb.  86 ;  Beardsly  v.  Stover,  7 
How,  294;  Hagins  v.  De  Hoit,  12  lb.  322.  Although  a  defendant 
waits  until  the  trial  to  object  to  the  sufficiency  of  a  pleading,  the 
court  or  referee  may  allow  an  amendment  by  the  insertion  of  neces- 
sary allegations  when  they  do  not  amount  to  a  new  cause  of  action. 
AVoolsey  v.  Eondout,  2  Keys,  603.  A  referee  may  allow  an  amend- 
ment of  the  pleadings  at  his  discretion.  Melvin  v.  Wood,  3  Keys, 
533  ;  S.  C,  4  Abb.  N.  S.  438 ;  Meyer  v.  Fiegel,  34  How.  434,  438  ; 
S.  C,  67  Eob.  123.  In  McGarry  v.  Board  of  Supervisors,  7  Eob. 
464,  it  was  said  that  a  substitution  on  the  trial  of  new  parties  de- 
fendants, could  not  be  made,  even  by  consent. 

The  provisions  of  section  173  (sec.  137,  Ohio  Code),  which  author- 
izes the  amendment  of  pleadings  after  judgment,  are  only  to  be 
construed  as  permitting  them  for  the  purpose  of  sustaining  such 
judgment.  Englis  v.  Furnis,  3  Abb.  32;  Gasper  v.  Adams,  24 
Barb.  288  :  Williams  v.  Birch,  6  Bosw.  674. 

In  any  case  in  which  the  court  ought  clearly  to  have  allowed  an 
amendment  at  special  term,  the  court  may  treat  the  pleadings  as 
having  been  amended  in  conformity  to  the  proof.  Bowdoin  v. 
Colman,  6  Duer,  183 ;  S.  C,  3  Abb.  431 ;  Bate  v.  Graham,  11  N.  Y. 
237;  Clark  v.  Dales,  20  Barb.  67;  Harrower  v.  Heath,  19  lb.  338; 
Pratt  v.  Hudson  Eiv.  E,  E,  Co.,  21  K  Y.  305,  313  ;  Wright  v. 
Whiting,  40  Barb.  235.  A  reply,  if  essential,  may,  on  motion  for 
new  trial,  be  filed.     Smith  v.  Floyd,  18  Barb.  522. 

If  the  complaint  was  not  amended  on  the  trial,  but  might  have 
been,  and  sufficient  evidence  is  offered  to  sustain  a  cause  of  action? 
the  court  will,  even  after  trial,  allow  it  to  be  amended  nunc  pro 
tunc.  Coleman  v.  Paysted,  36  Barb.  27.  See  40  JST.  Y.  341 ;  Louns- 
bury  v.  Purdy,  18  N.  Y.  515 ;  Pratt  v.  Hud.  Eiv.  E.  E.  Co.,  21  N. 
Y.  305  ;  Walsh  v.  Wash.  Ins.  Co.,  32  N.  Y.  427,  439. 

An  answer  may  be  amended  to  set  up  usury,  for  it  is  held  that 
the  same  rule  applies  to  defenses  denominated  unconscionable  as 
to  other  defenses  contained  in  it.  Catlin  v.  Gunter,  11  N.  Y.  368; 
S.  C,  10  How.  315  ;  Brown  v.  Mitchell,  12  How.  408 ;  S.  C,  2  Abb. 
481.  In  the  case  of  Catlin  v.  Gunter,  the  court  say:  "  We  are  not, 
I  conceive,  warranted  in  applying  a  different  rule  to  the  defense 
of  usury  from  that  which  we  would  hold  apj)licable  in  other  cases. 
It  is  a  defense  allowed  and  provided  by  law.  The  defendant, 
in  seeking  to  avail  himself  of  the  evidence,  notwithstanding  the 


AMENDMENTS.  315 


variance,  did  not  claim  an  indulgence  from  the  court,  but  simply 
asked  for  the  application  of  those  rules,  which  the  legislature  has 
provided  for  all  cases  indiscriminately,  whether  the  party  invoking 
their  exercise  was  seeking  to  visit  his  adversary  with  a  forfeiture  or 
not.  The  law  has  not  made  any  distinction  between  such  de- 
fenses and  those  where  no  forfeiture  is  involved,  and  the  court  can 
make  none.  If  the  se#se  of  the  legislature  is  plainly  expressed, 
as  it  seems  to  me  to  be,  we  have  no  judgment  to  pass  upon  the 
policy  of  these  provisions."  Harris,  J.,  in  Bates  v.  Voorhies,  7  How. 
234,  expressed  his  own  opinion  that  usury  ought  to  be  treated  as  other 
defenses,  though  he  thought  himself  bound  by  prior  decisions. 
This  must  have  been  before  the  case  of  Catlin  v.  Gunter.  In  12 
How.  408,  Brown  v.  Mitchell,  the  court  held  that  when  an  answer 
set  up  usury,  it  was  no  ground  why  defendant  should  not  have 
leave  to  amend  as  in  other  cases.  Parker,  J.,  where  a  default  for 
want  of  an  answer  was  opened,  refused  to  impose  the  terms  that 
the  defendant  should  not  set  up  the  defense  of  usury.  Grant  v, 
M'Coughin,  4  How.  216.  In  the  case  of  Union  National  Bank  of 
Troy  v.  Bassett,  3  Abb.  N.  S.  359,  it  was  held  that  under  this  sec- 
tion of  the  code  the  court  had  power  to  allow  a  defendant  to 
amend  his  answer  by  setting  up  usury  as  a  defense ;  that  no  dis- 
tinction is  made  between  defenses,  provided  a  proper  case  is  made. 
The  defense  of  usury  must  rest  on  the  same  ground  as  any  other. 
In  the  case  of  M'Queen  v.  Babcock,  3  Keys,  428,  Grover,  J.,  in 
the  opinion  of  the  court,  says  :  "  The  genei-al  term  correctly  held 
that  the  defendant  had  the  right  to  serve  an  amended  answer  twenty 
days  after  service  of  the  original,  and  to  include  therein  a  new  de- 
fense. Code,  sec.  172;  11  How.  273,  274.  This  is  now  the  settled 
practice  of  the  Supreme  Court.  The  idea  that  the  defense  of 
usury  or  of  the  statute  of  limitations  was  to  be  treated  in  this 
respect  different  from  other  defenses,  has  been  exploded ;  courts 
now  regard  all  legal  defenses  as  entitled  in  this  respect  to  the  same 
consideration.  The  question  in  this  case  was  not  addressed  to  the 
favor  or  the  discretion  of  the  court.  The  defendant  had  a  legal 
right  to  serve  the  amended  answer."  Sheldon  v.  Adams,  18  Ahb. 
to.-);  B.C., 41  Barb.  54;  27  How.  179;  Wood  v.  Ward,  10  West. 
L.  Journal,  504;  Rncher  v.  Hanny,  3  D.  &  E.  124;  3  Chit.  Gen. 
Pr.  705;  (j  Coinyu's  Dig.  L38;  Ham  v.  Goodwin,  1  Brev.  461  ;  <i 
N.  II.  124;  Sheets  v.  Baldwin,  12  Ohio,  120.  This  last  case  was  when 
the  leave  to  plead  the  statute  was  on  appeal.     Newson's  Adm'rv. 

Kan,  L8  Ohio,  240. 

Vide  also,  on  subject  of  amendments,  Bedford  v.  Terhune,  30 


316  AMENDMENTS. 


K  Y.  453;  S.  C,  27  How.  422;  1  Daly,  371 ;  Woodruff  v.  Dickie, 
31  How.  1G4;  S.  C.,  5  Bob.  G19;  Whitcomb  v.  Hungerford,  42 
Barb.  177;  Walter  v.  Bennett,  16  N.  Y.  250;  Morris  v.  Bextbrd, 
18  N.  Y.  557. 

In  the  ease  of  Hill  v.  The  Supervisor,  10  Ohio  St.  621,  it  was 
laid  down  as  a  rule  that,  where  amendments  are  to  be  made  by 
striking  out,  or  adding  an  allegation  to  a  petition,  it  can  not  be 
done  by  mutilating  or  altering  the  files.  The  party  amending 
should  either  file  a  new  petition  or  answer,  or  file  a  statement  of 
the  amendments,  and  designate  by  reference,  where  the  new  mat- 
ter is  to  be  inserted,  or  what  is  to  be  considered  as  stricken  out. 

There  is  another  case  to  which  reference  ought  to  be  had,  and 
that  is  the  case  of  Bradley  v.  Aldritch,  40  N.  Y.  504.  In  this  case 
it  was  held  that  in  an  action  commenced  and  tried  by  the  court  as 
an  action  in  equity,  the  plaintiff  seeking  therein  equitable  relief, 
and  equitable  only,  the  court,  finding  plaintiff  not  entitled  to  his 
equitable  relief,  can  not,  upon  certain  facts  appearing  on  the  trial 
which  would  warrant  an  action  at  law  for  damages,  but  which  he 
had  neither  alleged  nor  claimed,  assess,  or  cause  to  be  assessed, 
such  damages,  and  order  judgment  therefor  against  the  defendant. 
Section  275  of  the  code  is  intended  to  relieve  a  plaintiff  from  any 
technical  objection  that  he  has  not  prayed  for  the  precise  relief  to 
which  it  may  seem  he  is  entitled  upon  the  trial ;  but  still  the  relief 
granted  must  be  consistent  with  the  case  made  in  the  complaint. 
Woodruff,  J.,  in  delivering  the  opinion  of  the,  court,  says:  "It  is 
clear  that  this  action,  begun  and  tried  as  an  action  in  equity,  seek- 
ing upon  various  allegations  equitable  relief,  and  equitable  relief 
only,  viz.,  the  rescission  of  an  agreement  and  the  restoration  of 
the  parties  to  their  former  condition,  has  ended  as  an  action  on  the 
case  for  deceit,  and  an  award  of  damages  therefor,  which  is  '  an 
action  for  the  recovery  of  money  only.'  "     Code,  sec.  253. 

It  can  not  be  said  that  the  defendant,  by  going  to  trial  before 
the  court  without  objection,  waived  his  right  to  object  to  the  trial 
of  a  mere  action  to  recover  damages  for  deceit  without  a  jury,  for 
the  action  was  not  an  action  for  the  recovery  of  money  alone  (Code, 
sec.  253), but  for  special,  equitable  relief,  and  was,  therefore,  triable 
by  the  court  (sec.  254).  He,  therefore,  had  no  alternative,  and  had 
no  right  to  object  to  the  trial  of  the  cause  by  the  court."  .  He  then 
shows  that  Scott  v.  Barlow,  24  N.  Y.  40,  and  Ceason  v.  Keteltas, 
17  N.  Y.  491,  do  not  conflict  with  the  above  views,  and  proceeds: 
"  It  is  certain  that  the  former  practice  of  a  court  of  chancery  fur- 
nishes no  warrant  for  such  a  proceeding.     When  all  grounds  for 


AMENDMENTS.  317 


equitable  interposition  failed,  the  bill  was  dismissed  ;  and  if  a  cause 
of  action  at  law  appeared  to  arise  out  of  the  transaction,  which 
rested  in  no  equitable,  but  simply  in  legal  jurisdiction,  the  party 
was  left  to  pursue  his  remedy  in  the  appi*opriate  forum.  The  code, 
however,  in  section  275,  provides  that  the  relief  granted  to  a 
plaintiff,  if  there  be  no  answer,  can  not  exceed  that  which  he  shall 
have  demanded  in  his  complaint ;  but  in  any  other  case  the  court 
may  grant  him  any  relief  consistent  with  the  case  made  by  the 
complaint,  and  embraced  within  the  issue.  This  section  relieves 
the  plaintiff  from  any  technical  objection  that  he  has  not  prayed 
for  the  precise  relief  to  which,  on  trial,  it  may  seem  he  is  entitled, 
but  the  relief  to  be  granted  must  still  be  consistent  with  the  case 
made  by  the  complaint."  He  then  alludes  to  section  253, 
which  declares  that  an  issue  of  fact,  in  an  action  for  the  recovery 
of  money  only,  must  be  tried  by  a  jury,  unless  the  jury  is  waived, 
and  proceeds:  "Now,  it  was  not  the  intent  of  section  275  to  vio- 
late this  section,  and  enable  a  plaintiff  to  compel  a  trial  by  the 
court  by  merely  alleging  some  ground  for  equitable  relief,  and, 
failing  in  that,  have  a  trial  of  issues  in  an  action  for  fraud  and  an 
assessment  of  damages  therefor  without  a  jury.  Nor  will  it  war- 
rant the  court  in  disappointing  the  expectations  and  claims  of  both 
parties,  trying  the  action  and  deciding  it,  so  far  as  it  is  equitable  in 
its  nature,  by  denying  the  plaintiff's  claim,  and  then  selecting  of 
facts  found,  some  which  may  warrant  an  action  for  damages, 
which  the  plaintiff  has  neither  alleged  nor  claimed,  and  then  order 
an  assessment  by  a  referee,  and  judgment  for  such  damages  as 
may  be  assessed.  According  to  the  record  before  us,  he  was  not 
apprised  of  any  such  claim  until  its  declaration,  and  its  mainten- 
ance appeared  in  the  decision  of  the  judge;  and  to  that  he  ex- 
cepted, which  alone  he  could  do.  The  opinion  of  this  court,  in 
Mann  v.  Fairchild,  2  Keys,  111,  is  that  if  a  party  brings  an  equi- 
table action  even  now,  when  the  same  court  administers  both  sys- 
tems of  law  ainl  equity,  the  party  must  maintain  his  equitable  ac- 
tion upon  equitable  grounds,  or  fail,  even  though  he  may  prove  a 
good  cause  of  action  at  law  on  the  trial.  See  Ileywood  v.  Buffalo, 
14  N.  Y.  5-10."  This  case  clearly  shows  that  an  equitable  action 
can  ii"i  be  amended  into  a  legal  one.  The  report  says  that  the 
court  agreed  unanimously  that  causes  of  action,  both  legal  and 
equitable,  arising  out  of  the  same  transaction,  may  he  united  by 
proper  allegations  in  tin-  complaint.     This  may  hi'  true  in  theory, 

but  as  yd  I  have  never  B66D  such  a  case  in  fact.  The  courts  say 
that  the  plaintiff  can  not  state  his  action  in  inoro  than  one  count. 


318  AMENDMENTS. 


If,  thou,  a  legal  and  equitable  cause  of  action  arise  out  of  the  same 
transaction,  the  pleader  can  not  state  them  both  without  stating  in 
a  double  form  a  cause  of  action.  lie  must  elect  to  which  remedy 
lie  will  resort,  for  he  can  not  have  both.  Again,  the  section  in  re- 
gard to  the  trial  provides  no  trial  for  a  case  embod}dng  two  causes 
of  action — one  at  law  and  one  in  equity.  It  provides  for  the  trial 
of  actions,  not  for  the  trial  of  the  different  counts  or  causes  of  ac- 
tion embraced  in  the  action.  There  are  two  cases  when  these  two 
causes  may  exist:  on  note  and  mortgage  and  on  a  vendor's  lien 
for  purchase  money.  The  code  provides  for  this  joinder,  but 
makes  the  action  one  for  the  recovery  of  money  only,  so  far  as  the 
trial  and  an  appeal  are  concerned.  But  this  can  only  be  done 
when  an  action  at  law  would  lie  against  the  defendant  for  the 
money.  A  mortgage  alone  carries  with  it  no  personal  liability, 
unless  there  is  a  note  or  covenant  to  pay  the  debt.  If  there  is  a 
note  or  covenant  to  pay,  the  one  is  a  legal  cause  of  action,  the 
other  exclusively  equitable.  With  these  exceptions,  I  do  not  now 
recollect  any  other  cases  where  two  causes  of  action,  the  one 
equitable  and  the  other  legal,  can  grow  out  of  the  same  transac- 
tion. Out  of  a  sale  of  real  estate  there  may  be  two  causes  of  ac- 
tion— one  equitable  for  a  specific  performance,  the  other  legal  for 
damages  for  refusing  to  execute  the  agreement ;  but  these  can  not 
be  united.  The  party  can  have  but  one  of  these  remedies,  and  he 
must  elect  to  which  he  will  resort.  There  may  be  cases  of  this 
kind,  but  there  is  here  no  question  of  joinder,  but  of  election. 

The  whole  power  is  discretionaiy,  and  therefore  not  subject  to 
the  revision  of  a  higher  court.  Error  does  not  lie  for  what  is  mat- 
ter of  discretion  in  the  court  below.  French  v.  Stanley,  21  Maine, 
512;  Emerson  v.  Paine,  9  Vt.  271;  Jenkins  v.  Brown,  22  Wend. 
454;  P.  and  M.  Bank  v.  Willis,  5  Ala.  770;  Boberts  v.  Austin,  5 
Whart.  313  ;  Evans  v.  St.  Johns,  9  Port.  186 ;  Anderson  v  Hamer, 
5  How.  (Miss.)  525.  A  motion  to  strike  out  a  plea  is  addressed  to 
the  discretion  of  the  court,  and  is  not  revisable  in  error.  Town- 
son  v.  Moore,  9  Port.  136.  Mattel's  of  practice  in  courts  below  are 
not  the  subject  of  revision  by  writ  of  error.  Sisco  v.  Harmon,  9 
Vt.  129.  So  where  the  mode  of  examining  a  witness  is  a  matter 
of  discretion,  allowing  leading  questions,  and  permitting  a  witness 
to  be  recalled  to  restate  his  testimony,  etc.,  the  decision  can  not  be 
revised  on  error.  Mattocks  v.  Stearns,  9  Vt.  326;  Hojnkinson  v. 
Steel,  12  lb.  582 ;  The  People  v.  Rector,  19  Wend.  569 ;  Sanders  v. 
Johnson,  6  Blackf.  50.  So  a  motion  to  continue,  granted  or  re- 
fused, can  not  be  revised.     Small  v.  Anderson,  2  Monroe,  56.     So 


AMENDMENTS.  319 


a  motion  to  amend  is  one  of  discretion  and  can  not  be  revised. 
Warren  v.  McHatten,  2  Scam.  32 ;  7  Mo.  567 ;  14  Vt.  159 ;  4  Dana, 
264;  5  N.  H.  105  ;  1  Watts  &  Serg.  240. 

This  section,  then,  vests  in  a  single  judge  an  absolute,  uncondi- 
tional power  to  do  with  the  pleadings  and  record  of  a  case  just  as 
he  pleases,  and  on  just  such  terms  as  he  may  think  proper.  He 
may  commit  as  many  errors  as  he  pleases,  and  then  amend  the 
party  out  of  the  benefit  of- them.  The  only  limitation  on  his  dis- 
cretion is  in  conforming  the  pleading  or  proceeding  to  the  facts 
proved,  when  this  amendment  does  not  substantially  change  the 
claim  or  defense.  And  such  is  the  construction  given  to  this  sec- 
tion in  New  York,  by  Harris,  J.,  in  Beardsley  v.  Stover,  7  Pr.  294. 
"Before  the  recent  amendments  of  the  code,"  says  the  judge, 
i<  there  would  have  been  some  difficulty  in  allowing  the  proposed 
defense  to  be  inserted  in  the  answer.  By  the  terms  of  section  173, 
the  court  could  only  allow  such  amendments  as  would  not  change 
substantially  the  claim  or  defense.\  But  by  a  very  slight  change 
in  the  language  of  the  section,  this  restriction,  which  before  was 
general,  is  now  limited  to  those  cases  in  which  amendments  are 
allowed  for  the  purpose  of  conforming  the  pleading  to  the  facts 
proved.  In  all  other  cases  I  understand  the  court  to  be  invested 
with  the  power,  in  its  discretion,  to  allow  any  allegations  material 
to  the  case  to  be  inserted  in  the  pleading,  even  though  the  effect 
may  be  to  change  entirely  the  cause  of  action  or  defense." 

This  opinion  is  in  conformity  with  the  literal  language  of  the 
code,  and  unless  there  are  some  other  restrictions  upon  the  will  of 
the  court  than  what  the  code  contains,  we  verily  have  the  strange 
anomaly  of  a  court  of  law  without  any  law,  so  far  as  this  impor- 
tant subject  is  concerned,  but  its  own  unbridled  will.  It  can  grant 
to  one  what  it  denies  to  another,  and  its  action  can  not  be  con- 
trolled. But  is  it  true  that  a  court  can  be  endowed  with  any  such 
discretion?  That  men's  rights  and  remedies  can  thus  be  tampered 
with  by  a  judge,  even  with  the  sanction  of  law?     We  think  not. 

The  constitution  secures  to  all  the  right  of  enjoying  and  defend- 
ing life  and  liberty,  acquiring,  possessing  and  protecting  property, 
and  seeking  and  obtaining  happiness  and  safety,  Const.,  art.  1., 
sec.  1 ;  and  all  courts  shall  he  open,  and  every  person,  for  an  injury 
done  liim  in  his  lands,  goods,  person,  or  reputation,  shall  have 
remedy  by  'h/e  course  of  law,  and  jusii.v  administered  withoul  de 
h.y.  Const.,  art.  1,  sec  16.  Nor  shall  any  power  of  suspending 
law-  ever  !»•  exercised  except  by  the  General  Assembly.  Sec.  L8. 
These  clauses  aro  the  great  guaranties  of   the  constitution    in 


320  AMENDMENTS. 


favor  of  individual  rights  and  liberty  against  legislative  and  judi- 
cial discretion.  It  will  be  admitted,  it  is  presumed,  that  no  judg- 
ment can  be  rendered  against  a  person  in  an  action  to  which  he  is 
nnt  a  party;  and  yet  the  code  authorizes  the  court  to  strike  out 
and  insert  names  after  judgment.  Is  it  possible  that,  under  a  gov- 
ernment of  law,  any  court  can  be  empowered  to  exercise  any  such 
discretion  ?  Every  party  must  have  his  day  in  court,  his  right  to 
answer  any  claim  that  may  be  set  up  against  him;  but  if  he  can 
he  made  a  party  to  a  judgment  already  rendered,  because  he  ought 
originally  to  have  been  made  a  party  to  the  action,  then  he  is  con- 
cluded as  to  the  amount  by  a  trial  with  which  he  had  no  right  to 
interfere,  and  in  which  he  could  not  be  heard.  There  is,  then,  no 
possible  case  where  the  name  of  a  person  can  be  inserted  in  a 
record  after  the  rendition  of  a  judgment,  without  violating  the 
plainest  principles  of  common  justice,  and  the  well-settled  consti- 
tutional law  of  the  land.  The  party  has  a  right  to  be  heard  upon 
every  question  arising  in  the  progress  of  a  case,  by  a  decision  of 
which  he  is  in  any  wdse  to  be  affected.  In  D'Arcy  v.  Ketch  urn  et 
al,  11  How.  U.  S.  165,  a  judgment  rendered  against  one  not  served 
with  process  was  held  void.  By  the  general  law  of  the  land,  no 
court  is  authorized  to  render  a  judgment  or  decree  against  any 
one,  or  his  estate,  until  after  due  notice  by  service  of  process,  to 
appear  and  defend.  This  principle  is  dictated  by  natural  justice, 
and  is  only  to  be  departed  from  in  cases  expressly  warranted  by 
law  and  excepted  out  of  the  general  rule.  Hollingsworth  v.  Bar- 
bour, 4  Peters,  466;  5  Johns.  37;  3  Wils.  297;  9  East,  192;  8 
Johns.  86. 

No  more  can  a  name  be  stricken  out  after  judgment ;  because 
the  plaintiff's  rights  are  then  settled  by  the  judgment,  and  they 
can  not  be  changed,  except  by  some  process  known  to  the  law. 
On  error,  a  judgment  can  be  reversed ;  but  if  there  is  no  error  in 
the  record,  what  right  or  power  has  a  court  to  deprive  the  plaint- 
iff of  a  judgment  against  one  party  to  it?  Indeed,  the  jurisdic- 
tion of  the  court  over  the  case  is  gone  before  such  an  amend- 
ment can  be  made.  On  the  rendition  of  the  judgment,  the  case  is 
at  an  end,  and  out  of  court,  and  so  also  are  the  parties.  There  seems 
to  be  no  principle  on  which  the  right  to  any  such  power  can  rest. 
Our  own  courts  have  recognized  all  this  as  law.  In  Keller  v. 
Com.  Pick.  Co.,  1  Ohio,  375,  the  court  held  that  a  judgment  could 
not  be  amended,  save  in  mere  matters  of  form.  An  error  clearly 
clerical  may  be  amended.  Hamner  v.  McConnell,  2  Ohio,  31. 
Where  service  was  had  only  on  one,  and  the  clerk  by  mistake  en- 


AMENDMENTS.  321 


tered  up  judgment  against  both,  this  can  be  corrected.  lb. ;  Tor- 
bet  v.  Coffin,  6  Ohio,  274.  The  whole  extent  of  the  power  of  the 
court  to  amend  a  record  was  limited  to  cases  where  the  whole 
record  showed  what  the  error  was,  and  that  it  was  a  mere  clerical 
one.  State  v.  Smith,  1  Nott  &  McCord,  16  ;  Gay  v.  Caldwell,  Har- 
din, 64;  6  Mon.  341 ;  7  Cowen,  344;  3  lb.  43,  note;  1  Pick.  351. 

Nor  can  such  an  amendment  be  made  without  notice  to  the  ad- 
verse party.  5  How.  (Miss.)  173 ;  1  Smede  &  Marsh.  391 ;  Reynolds 
v.  Stansbury  et  al.,  20  Ohio,  344;  15  Johns.  588. 

This  section,  therefore,  must  be  held  to  confer  no  other  power 
than  the  courts  before  possessed  as  to  amendments  of  records, 
either  in  changing  parties,  or  in  any  other  particular  changing 
the  record. 

There  is  another  limitation  to  be  placed  upon  this  power.  The 
parties  to  the  action  can  not  be  changed  so  as  to  get  rid  of  the 
original  plaintiffs  or  defendants.  Section  116  provides  that  the 
title  of  a  cause  shall  not  be  changed  in  any  of  its  stages.  Surely 
if  parties  can  be  changed  without  limitation,  it  is  absurd  to  retain 
the  title  of  a  cause  which  no  longer  indicates  its  real  parties. 
This  section  clearly  shows  that  the  legislature  never  supposed  that 
the  parties  to  an  action  could  be  substantially  changed.  The  sub- 
ject matter,  and  the  original  parties  to  an  action,  should  never  be 
so  changed  as  in  substance  to  make  it  a  new  action. 

In  actions  at  law,  the  parties  and  the  contract  or  right  settle 
the  character  of  the  action.  If  the  plaintiffs  aver  that  they  made 
a  contract  with  certain  defendants,  can  they  be  permitted  so  to 
change  the  action  as  to  bring  in  new  plaintiffs  or  new  defendants? 
If  so,  this  is  to  make  a  new  action  ;  to  set  forth  a  new  contract. 
Where  the  defendants  are  a  firm,  and  plead  in  abatement  that  an- 
other made  the  contract  with  them,  then  a  summons  may  issue 
for  that  party,  and  he  bo  brought  in  ;  because  it  is  a  plea  in  abate- 
ment, and  admits  the  contract  as  that  of  a  firm,  but  avers  that 
there  has  been  a  mistake  as  to  its  members.  It  does  not  contra- 
dict the  case  originally  made  in  the  petition.  But  to  permit  a 
plaintiff  to  aver  a  contract  made  with  himself,  and  then  to  amend 
it  into  a  contract  made  with  himself  and  others,  is  to  permit  him 
to  commence  a  new  action  on  a  new  contract. 

The  word  amend  implies  that  something  exists  to  amend,  and 
that  the  amendment  is  an  improvement  of  something  already  ex- 
isting.     Eere  is  an  action  founded    upon  a  cause  of  action;  that  is 
tho  existing  matter,  and  that  may  be  improved  by  an  amendmont; 
VOL.  l — 21 


322  AMENDMENTS. 


but  that  which  is  equivalent  to  creating  a  new  action  is  no  amend- 
ment ;  it  is  the  creation  of  a  new  action.  It  is  necessary  to  keep 
this  idea  in  view;  otherwise,  under  the  name  of  an  amendment, 
new  actions  will  be  commenced.  This. view  of  the  code  at  first 
became  impressed  upon  some  minds  from  the  sweeping  language 
of  this  section.  A  married  woman,  in  the  absence  of  her  husband 
in  California,  brought  suit  in  her  own  name;  it  was  appealed  to 
the  Court  of  Common  Pleas,  and  a  motion  was  there  made  to  sub- 
stitute the  name  of  the  husband  for  that  of  the  wife ;  and  this  was 
gravely  urged  as  an  amendment.  But  what  was  this  but  the  be- 
ginning of  a  new  suit?  Here  was  a  mistake  as  to  the  person  who 
ought  to  be  plaintiff.  Can  such  a  mistake  be  corrected  by  an 
amendment?  If  so,  there  is  no  necessity  to  be  particular  as  to  who 
are  plaintiffs;  as,  if  the  person  who  brings  the  suit  has  no  cause 
of  action,  he  may  find  some  other  one  who  has,  and  bring  him  in 
by  amendment.  Is  this  giving  one  a  remedy  by  due  course  of 
law?     There  is  no  law  about  it ;  it  is  the  pure  discretion  of  a  judge. 

Again  :  It  is  a  grave  question  whether  the  legislature  can  au- 
thorize a  court  to  suspend  the  law.  This  code  points  out  how  a 
suit  must  be  commenced;  how  the  cause  of  action  and  the  defense 
must  be  stated ;  and  is  it  possible  that  the  legislature  designed  to 
repeal  all  this,  or  to  allow  a  judge  to  suspend  its  application  to  such 
cases  as  he  may  choose?  Is  this  the  due  administration  of  justice? 
This  certainly  can  not  be  extended  so  far  as  to  enable  one,  under 
the  pretense  of  an  amendment,  to  commence  a  new  action  ? 

Where  the  subject  of  the  suit  is  the  matter  of  jurisdiction,  and 
the  court  are  called  upon  to  make  a  title  to  it  to  a  purchaser  under 
its  decree,  in  such  a  case  the  court  will  refuse  to  act  until  all  parties 
interested  in  the  property  are  before  the  court.  The  plaintiff  must 
make  all  others  interested,  defendants ;  he  can  not  make  them 
plaintiffs  against  their  consent.  In  these  proceedings  in  rem  the 
rule  in  chancery  must  prevail ;  but  this  rule  is  not  applicable  to 
personal  actions  for  the  recovery  of  money,  whether  as  a  debt  or 
damages.  In  such  actions  there  is  no  subject  to  be  disposed  of; 
no  property  the  title  of  which  is  to  be  transferred.  The  plaintiff 
has  brought  his  action,  and  stated  the  grounds  of  it,  and  can  he 
depart  from  it  without  in  effect  commencing  a  new  action? 

The  very  last  clause,  where  the  discretion  is  limited,  looks  to  this 
construction.  The  pleadings  can  not  be  made  to  conform  to  the 
proof,  if  in  so  doing  the  claim  or  defense  is  substantially  changed. 
Why  should  there  be  a  distinction  here,  if  the  legislature  intended 
to  give  any  such  unlimited  discretion  over  the  pleadings  and  the 


AMENDMENTS.  323 


record?  "When  the  parties  have  alleged  one  ease  and  proved  an- 
other, why  not  amend  them  into  harmony,  if  you  can  by  amend- 
ment wholly  change  the  cause  of  action  and  the  parties? 

We  conclude,  therefore,  that  the  identity  of  the  action  can  not 
be  changed  by  an  amendment,  whether  in  regard  to  the  cause  of 
the  action  or  the  parties  to  it.  Where  the  action  is  founded  on  a 
legal  right,  this  rule  must  be  strictly  applied;  in  chancery  cases 
the  rule  heretofore  prevailing  in  courts  of  equity  will  still  prevail, 
and  be  liberally  applied  to  cases  in  rem  or  in  equity.  ISTo  other 
construction  can  be  given  to  the  section  without  unsettling  all  cer- 
tainty in  the  administration  of  justice,  and  all  uniformity  in  the 
practice  of  courts ;  since  such  practice  will  be  but  the  individual 
discretion  of  the  court  or  judge;  whereas  a  court  must  have  rules 
even  for  the  exercise  of  its  discretion,  so  that  it  may  mete  out  to 
all  the  same  administration  of  the  law. 

Section  139  seems  to  recognize  this  principle  of  limitation.  After 
a  demurrer  has  been  sustained,  the  adverse  party  maybe  permitted 
to  amend,  if  the  defect  can  be  remedied  by  way  of  amendment.  If 
a  new  case  could  be  introduced  by  an  amendment,  there  would  be 
no  difficulty  in  remedying  almost  any  defect ;  so  the  phrase,  by 
way  of  amendment,  seems  to  imply  that  this  way  of  amendment  is 
not  a  way  in  which  everything  can  be  done ;  that  it  is  not  a  way 
to  commence  new  suits  or  introduce  new  causes  of  action. 

This  section  seems  to  have  been  framed  under  the  vague  notion 
that  the  power  of  amendment  should  be  made  just  as  comprehen- 
sive as  it  could  be  made ;  but  the  court  still  has  to  construe  it  in 
relation  to  its  own  powers  and  the  other  provisions  of  the  code. 
The  very  words,  in  furtherance  of  justice,  convey  an  insinuation  that 
this  section  must  not  be  taken  too  literally;  that  it  must  be  limited 
to  cases  where  it  is  in  furtherance  of  justice.  These  words  either 
mean  something  or  they  mean  nothing.  They  mean  nothing  if  the 
opinion  of  the  judge  is  to  be  the  sole  standard  whether  the  amend- 
ment is  in  furtherance  of  justice  or  not.  Such  is  the  opinion  of 
Mr.  Justice  Harris,  in  Beardsley  v.  Stover,  7  Pr.  294.  His  language 
is:  "In  this  case,  I  think  it  maybe  in  furtherance  of  justice  to 
allow  the  defendant  to  amend,"  etc.  In  his  view,  what  he  thinks 
is  in  furtherance  of  justice,  is  so.  With  this  view  of  the  law  there 
[a  no  rule  as  to  amendments,  save  the  whim  of  each  judge  on  each 
;is  it  may  arise.  We  all  know  that  in  such  a  state  of  the  law, 
there  never  ''an  be  any  uniformity  or  certainty. 

But  it  is  believed  thai  these  words,  in  furtherance  of  justice,  mean 
Something.     They  are  not  to  be  disregarded  as  meaningless,  unless 


324  AMENDMENTS. 


no  meaning  can  be  given  to  them.  The  statute  does  not  say  that 
a  court  may  amend  at  its  discretion.  That  is  Judge  Harris'  con- 
struction of  it.     What  then  do  these  terms  mean  ? 

The  courts  had  already  recognized  certain  rules  upon  which 
amendments  might  he  made,  and  these  rules  are  evidence  of  what 
amendments  are  in  furtherance  of  justice.  A  writ  issued  without 
a  seal  is  not  amendable.  Witherell  v.  Randall,  30  Maine,  168; 
Bailey  v.  Smith,  12  lb.  196  ;  Tibbets  v.  Shaw,  19  lb.  204.  The 
reason  is  plain — the  writ  is  void.  Boal's  Lessee  v.  King  et  ah, 
6  Ohio,  11  ;  Bailey  v.  Smith,  12  Maine,  196 ;  Hall  v.  Jones,  9  Pick. 
446.  To  amend  a  void  proceeding  into  a  valid  one  can  never  be 
in  furtherance  of  justice,  until  law  is  considered  no  longer  obligatory ; 
and  the  law  regulating  the  practice  of  the  courts  is  just  as  obliga- 
tory as  any  other  law. 

So  it  has  been  always  held  that  a  new  cause  of  action  can  not 
be  introduced  by  way  of  amendment.  Thompson  v.  Phelon, 
2  Foster  (N.  H.),  339.  So  it  was  held  that  a  declaration  containing 
a  count  for  work  and  labor  could  not  be  amended,  by  inserting 
counts  for  use  and  occupation,  and  for  goods  sold  and  delivered, 
lb.  A  count  on  a  note  for  specific  articles  can  not  be  admitted  as 
an  amendment  to  a  declaration  containing  only  a  count  for  money 
had  and  received.  French  v.  Grerrish,  2  Foster  (N.  H.),  97.  In 
Lawrence  v.  Langley,  14  N.  H.  70,  the  court  says :  "  The  amend- 
ment in  question  was  improperly  admitted.  By  it  a  new  and 
different  cause  of  action  was  introduced  into  the  declaration. 
In  the  original  count  the  ground  of  action  is  the  liability  of  the 
defendant  as  the  indorser  of  a  note,  while  the  promise  alleged  in 
the  amended  count  is  based  upon  the  sale  of  the  stage  property  to 
the  defendant.  The  contracts  set  forth  in  the  two  counts  are 
therefore  not  the  same."  In  Butterfield  v.  Harvell,  3  K.  H.  201, 
the  following  language  is  held  :  "  Notwithstanding  the  liberal  con- 
struction given  by  courts,  in  modern  times,  to  statutes  of  amend- 
ments, and  the  general  provisions  of  our  statute  (1  N.  H.  Laws,  99), 
that  courts  may  grant  amendments,  '  where  the  person  or  case 
may  be  rightly  understood  or  intended,'  it  is  a  well-settled  principle, 
that  no  amendment  of  a  declaration  inconsistent  with  the  nature 
of  that  declaration,  or  which  changes  the  cause  of  action,  comes 
within  the  provision  of  the  statute,  or  can  be  admitted."  So  a 
note  having  been  received  as  payment  of  an  account,  and  an 
action  having  been  brought  for  the  goods  sold,  the  court  held  that 
the  note,  being  a  new  cause  of  action,  could  not  be  introduced  into 


AMENDMENTS.  325 


the  declaration  by  way  of  amendment.     Newall   v.  Hussey,  18 
Maine,  249. 

Amendments  may  be  permitted  when  they  do  not  introduce  a 
new  cause  of  action.  In  Stevenson  v.  Mudgett,  10  N.  H.  338,  the 
rule  is  thus  stated  :  "An  amendment  which  changes  the  alleged 
date  of  a  contract,  or  the  sum  to  be  paid,  or  any  particular  of  the 
matter  to  be  performed,  or  the  time  or  manner  of  performance, 
changes  in  one  sense  the  cause  of  action ;  but  it  is  not  in  this  sense 
that  the  rule  is  to  be  understood.  Amendments  of  that  character, 
so  long  as  the  identity  of  the  matter  upon  which  the  action  is 
founded  is  preserved,  are  admissible  ;  the  alteration  being  made, 
not  to  enable  the  plaintiff  to  recover  for  another  matter  than  that 
for  which  he  originally  brought  his  action,  but  to  cure  an  imper- 
fect or  erroneous  statement  of  the  subject  matter,  upon  which  the 
action  was  in  fact  founded.  So  long  as  the  court  can  see  that  the 
identity  of  the  cause  of  action  is  preserved,  the  particular  allega- 
tions of  the  declaration  may  be  changed  and  others  superadded, 
in  order  to  cure  imperfections  and  mistakes  in  the  manner  of 
stating  the  plaintiff's  case."  The  same  doctrine  is  also  asserted  by 
the  same  court  in  Merrill  v.  Russell,  12  N.  H.  74.  The  court  there 
says  :  "And  the  rule  prohibiting  amendments  only,  prohibits  such 
as  would  allow  a  party  to  recover  for  a  cause  of  action  other  than 
that  for  which  the  party  brought  his  action,  and  not  such  as  con- 
stitute merely  a  more  perfect  and  complete  statement  of  the  par- 
ticulars of  the  matter  constituting  the  cause  of  action  originally 
set  out."  So  a  new  count  for  the  assertion  of  a  right,  or  the  enforce- 
ment of  a  claim,  growing  out  of  the  same  transaction,  act,  agree- 
ment, or  contract,  upon  which  the  original  declaration  is  founded, 
is  not  for  a  new  cause  of  action,  and  may  be  inserted  as  an  amend- 
ment, however  different  the  form  of  liability  may  be.  Smith  v. 
Palmer,  6  Cush.  513.  Vide  also  Cobarga  v.  Seeger,  17  Penn.  St. 
514  ;  Loring  v.  Proctor,  2G  Maine,  18;  30  Maine,  30. 

The  basis  of  this  rule  is  plain  ;  it  is  not  just  to  the  defendant  to 
permit  a  party  who  can  not  recover  for  what  he  sues,  to  recover  by 
means  of  a  new  cause  of  action,  surreptitiously  slipped  in  under 
the  pretense  of  an  amendment.  Such  an  amendment  can  not  be 
in  furtherance  of  justice.  Justice  is  the  application  of  a  law  to  a 
case.  The  law  points  out  how  actions  shall  be  commenced;  re- 
quires a  petition  stating  the  facts  of  the  case,  and  other  proceedings 
specifically  provided  for  in  the  code.  This  whole  law  is  got  rid  of, 
if  a  party  can  commence  a  suit  for  one  thing,  and  try  his  case  for 


326  AMENDMENTS. 


another.     There  can  be  no  justice  in  such  a  proceeding.    Penny  v. 
Parham,  1  La.  Ann.  274. 

A  party  may  be  permitted  to  amend  by  diminishing  the  amount 
of  what  he  claims.  In  Smith  v.  Brown,  14  N.  H.  G7,  a  plaintiff  in 
an  action  of  trover  was  permitted  to  strike  out  the  name  of  a  de- 
fendant. The  reason  is  obvious — a  verdict  might  have  been  found  in 
his  favor  without  discharging  the  others.  Fitch  v.  Stevens,  2  Met. 
505.  So  a  count  may  be  struck  out,  of  which  the  court  has  no 
jurisdiction.  Pollard  v.  Barnes,  2  Cush.  191;  29  Maine,  123; 
Wight  v.  Stiles,  29  lb.  1G4. 

So  amendments  may  be  made,  supplying  certain  mere  formal 
deficiencies.  A  complaint  maybe  amended  in  the  amount  claimed 
in  an  action  on  a  contract  for  money.  Merchant  v.  N.  York  Life 
Ins.  Co.,  2  Sandf.  S.  C.  669.  So  where,  in  a  real  action,  the  plaintiff 
proves  title  to  a  less  quantity  than  he  has  claimed,  he  may  amend 
and  recover  according  to  his  proof.  Kellogg  v.  Kellogg,  6  Barb. 
S.  C.  116. 

A  writ  maybe  amended  where  there  is  sufficient  expressed  to 
determine  with  certainty  the  nature  and  object  of  the  process. 
Dean  v.  Smith,  11  Yt.  331 ;  Bartholomew  v.  Chatauqua  Bank,  19 
Wend.  99;  Fitzgerald  v.  Garvin,  T.  U.  P.  Charlton,  281.  The 
name  of  the  State  may  be  inserted  if  it  has  been  omitted.  Harris 
v.  Jenks,  2  Scam.  475.  The  State  is  clearly  shown  by  the  court 
from  which  the  writ  issues.  But  the  amendment  of  an  execution 
will  not  be  permitted,  when  such  amendment  will  prejudice  the 
rights  of  third  persons.  Cape  Fear  Bank  v.  Williamson,  2  Iredell, 
147.  And,  if  amended,  the  court  will  disregard  it  in  its  retroactive 
effect,  where  the  rights  of  others  are  to  be  affected.  Ohio  Life  Ins. 
&  T.  Co.  v.  Urb.  Life  Ins.  Co.,  13  Ohio,  220. 

The  true  test  seems  to  be  this  :  Is  the  writ  void  ?  If  it  is,  it  can 
not  be  amended.  Wood  v.  Hill,  5  N.  H.  229 ;  Bell  v.  Austin,  13 
Pick.  90 ;  Cramer  v.  Yan  Alstyne,  9  Johns.  386  ;  Kyler  v.  Ford,  2 
Eand.  1 ;  S.  P.,  2  Penn.  632  ;  1  Mon.  146  ;  Hall  v.  Jones,  9  Pick. 
446 ;  Chandler  v.  Bricknell,  4  Cowen,  49 ;  Burk  v.  Barnard,  4 
Johns.  309;  4  Cowen,  548;  2  Johns.  190.  But  where  the  writ  is 
only  voidable  there  it  may  be  amended.  Jones  v.  Cook,  1  Cowen, 
309  ;  Yandeusen  v.  Brower,  6  Cowen,. 50 ;  16  Johns.  145. 

A  record  may  be  amended  after  the  case  is  out  of  court,  if  there 
is  anything  to  amend  by,  Hardin,  64 ;  as  a  mistake  in  transposing 
parties'  names,  Bowman  v.  Green,  6  Mon.  341 ;  2  Penn.  1012;  or 
a  mistake  in  the  party  for  whom  judgment  is  rendered.  Marsh  v. 
Perry,  7  Cowen,  344;  3  Cowen,  43,  note;  4  Conn.  71.     The  judge 


AMENDMENTS.  327 


can  not  do  it  from  his  own  knowledge  of  the  facts,  State  v.  Smith, 
1  Nott  &  MeCord,  16  ;  Peck,  140  ;  nor  by  the  minutes  of  the  judge. 
Dickson  v.  Hoff,  3  How.  (Miss.)  165.  The  errors  must  be  mere  cler- 
ical errors,  and  appear  to  be  such  from  an  inspection  of  the  balance 
of  the  record,  or  they  can  not  be  amended.  The  solemn  record  of 
a  court  can  not  be  changed  on  any  evidence  whatever  outside  of 
the  record.  This  is  the  rule  universally  recognized.  Smith  v. 
Branch  Bank,  5  Ala.  26 ;  1  Scam.  122 ;  4  Humph.  43 ;  Armstrong 
v.  Robertson,  2  Ala.  164  ;  1  Story,  310  ;  9  Port.  252,  186;  4  Leigh, 
308 ;  6  Blackf.  246  ;  1  Penn.  St.  320  ;  Green  v.  Dodge,  3  Ohio,  486  ; 
1  Ohio,  375  ;  2  Va.  Cases,  527  ;  Hull  v.  Williams,  10  Maine,  278 ;  1 
Dev.  &  Bat.  374 ;  6  Call,  12  ;  5  Watts,  186.  On  error  for  that  the 
person  having  the  legal  interest  is  not  made  plaintiff;  the  record 
can  not  be  corrected  by  way  of  amendment.  Frankem  v.  Trimble, 
5  Barr,  520. 

These  various  rules  regulating  judicial  discretion  in  matters  of 
amendment  are  all  founded  on  the  principles  of  justice  and  law. 
A  judgment  can  not  be  amended  so  as  to  change  its  character  ;  be- 
cause it  is  the  highest  evidence  of  a  fact  known  to  the  law;  hence 
it  is  not  legally  capable  of  being  proved  to  be  incorrect.  The  other 
rules  are  equally  founded  in  principles  of  justice,  and  can  not  be 
violated  without  being  against  the  furtherance  of  justice,  and 
therefore  against  the  very  wording  of  the  statute.  Those  words 
do  mean  something,  and  do  limit  the  discretion  of  the  court  by 
those  plain  rules  of  common  honesty  and  justice  and  law  which 
prohibit  a  judge  from  acting  arbitrarily  in  any  case.  What 
amendments  are  in  furtherance  of  justice  must  be  settled  by  the 
practice  of  the  courts,  and  can  be  settled  in  no  other  way. 

IV.  Correction  of  Mistakes. 

Sec.  138.  The  court  in  every  stage  of  an  action  must  disregard 
any  error  or  defect  in  the  pleadings  or  proceedings  which  docs  not 
affect  the  substantial  rights  of  the  adverse  party;  and  no  judg- 
ment shall  be  reversed  or  affected  by  reason  of  such  error  or  defect. 


Win  re  an  affidavit  to  obtain  an  order  of  arrest  was  entitled  "  in 
the  cause,"  before  the  action  was  commenced,  it  was  held  to  be  a 
defed  nof  affecting  the  substantial  rights  pf  the  adverse  party,  and 
might  be  disregarded.  Pindar  v.  Black,  4  Pr.  95.  An  answer  was 
entitled  "in  the  Supreme  Court,"  instead  of  "Superior  Court." 
The  error  could  be  disregarded.  William  v.  Sholto,  4  Sand.  S.  ( '. 
641.     Where  a  demurrer  was  stricken  out  as  frivolous,  and  judg- 


328  AMENDMENTS. 


ment  entered  as  on  a  default,  and  no  entry  had  been  made  of  the 
motion  and  judgment,  the  court  held  that  it  would  disregard  this 
clerical  error.  Whitehead  v.  Pearce  et  al.,  9  Pr.  35  ;  Simmons  v. 
Sisson,  26  N.  Y.  264;  Phelps  v.  McDonald,  26  N.  Y.  82  ;  Grant  v. 
Morse,  22  N.  Y.  323.  Judgments  are  not  reversed  because  the 
facts  found  by  a  referee  or  judge  do  not  affirmatively  sustain  them. 
On  the  contrary,  the  judgment  of  subordinate  courts  are  presumed 
to  be  right,  unless  it  appears  that  a  rule  of  law  has  been  violated 
after  assuming  that  the  facts  have  been  viewed  in  the  most  favor- 
able light  which  the  case  will  admit  of. 

Y.   Variance. 

Sec.  131.  No  variance  between  the  allegation  in  a  pleading  and 
the  proof  is  to  be  deemed  material,  unless  it  has  actually  misled 
the  adverse  party  to  his  prejudice,  in  maintaining  his  action  or 
defense  on  the  merits.  2  Ohio  St.  131,  562, 569  ;  4  lb.  542 ;  7  lb. 
310;  10  lb.  621. 

Whenever  it  is  alleged  that  a  party  has  been  so  misled,  that  fact 
must  be  proved  to  the  satisfaction  of  the  court,  and  it  must  also  be 
shown  in  what  respects  he  has  been  misled. 

The  court  may  thereupon  order  the  pleading  to  be  amended 
upon  such  terms  as  may  be  just. 

This  definition  of  a  variance  is  anything  but  definite,  and  is 
open  to  the  same  objection  that  so  much  of  the  code  is  open  to — 
that  of  vesting  unlimited  discretion;  the  codifiers,  in  fact,  did  not 
seem  to  know  whether  their  code  would  work  well  or  ill.  Hence, 
after  the  most  exact  details,  the  whole  is  rendered  inoperative  by  a 
provision  which  permits  the  judge  to  insist  upon  the  provisions 
of  the  code  or  not,  as  he  sees  fit— a  discretion  with  which  no  good 
judge  would  wish  to  be  clothed. 

The  test  seems  to  be  one  of  fact,  not  of  principle.  Was  the  ad- 
verse party  misled,  and  that  to  his  prejudice?  The  code  here, 
therefore,  provides  for  a  quarrel  between  counsel  and  the  court  on 
an  incidental  question  of  fact,  arising  during  the  trial.  What  is  a 
variance  in  law  is  easily  determined ;  whether  a  party  has  been 
misled  is  not  so  easy  to  determine. 

The  court  must,  however,  have  some  rule  in  regard  to  the  mat- 
ter, if  it  wishes  to  administer  the  same  law  to  all  parties.  And 
this  rule  must  be  this :  If  the  defendant  shall  make  affidavit,  or  if 
his  counsel  shall  file  his  professional  statement  that  he  has  been 
misled  to  the  prejudice  of  the  adverse  party,  the  court  must  take 


AMENDMENTS.  329 


such  to  be  the  fact.  It  will  never  answer  to  permit  an  inquiry 
upon  evidence  to  ascertain  the  fact ;  such  a  course  would  lead  to 
endless  confusion.  There  may  be  cases  so  plain  that  no  one  could 
be  misled  by  the  variance ;  in  that  case  the  court  would,  as  a  mat- 
ter of  law,  decide  that  no  one  could  be  misled  by  such  a  variance ; 
but  in  all  other  cases,  the  fact  must  be  ascertained  in  the  way 
above  indicated.  The  prayer  for  relief,  it  seems,  would  be  a  vari- 
ance not  calculated  to  mislead  one.  Getty  v.  H.  R.  R.  Co.,  6  Pr. 
270. 

Where  the  variance  is  material,  the  court  must  give  leave  to 
amend  upon  such  terms  as  may  be  just.  These  terms  must  be  on 
the  payment  of  costs,  if  the  amendment  works  a  continuance  of 
the  case.  It  would  not  be  just  to  burden  the  other  party  with  the 
costs  of  two  trials,  for  a  fault  of  the  party  guilty  of  mispleading. 

It  is  often  difficult  to  settle  what  is  a  variance.  Where  the  dec- 
laration alleged  that  the  plaintiff  was  entitled  to  a  public  alley,  it 
was  held  that  proof  of  a  private  alley  did  not  sustain  the  averment. 
So,  where  in  a  bill  in  chancery  it  was  stated  that  the  agent  of 
plaintiff  bought  and  took  a  conveyance  of  certain  lands,  and  paid 
for  the  same  with  their  judgment,  and  the  proof  showed  that  the 
agent  paid  one-half  of  the  price  with  his  own  money,  it  was  held 
to  be  a  fatal  variance,  and  not  having  been  amended  before  hear- 
ing, it  could  not  now  be  done  on  a  bill  of  review.  Reynolds  v. 
Morris,  7  Ohio  St.  310.  "  That  the  allegata  and  probata  must  sub- 
stantially agree  in  proceedings  in  equity  as  well  as  at  law,"  say 
the  court,  "  is  a  doctrine  too  familiar  and  well  settled  to  require 
the  support  of  authority.  Proof  without  allegation  is  as  ineffect- 
ual as  allegation  without  proof."  Hunt  v.  Daniel,  6  J.  J.  Marsh. 
404.  There  is  no  dispute  or  uncertainty  as  to  the  rule ;  the  only 
difficulty,  if  there  be  any,  is  in  respect  to  its  application  in  the 
case  before  us.  In  Delle  v.  Woods,  14  Ohio,  126,  it  is  said  :  "  The 
bill  alleges  an  agreement  to  convey  to  each  of  the  children.  The 
proof  sustains  a  decree  to  convey  to  two  only.  By  the  allegata  of 
the  bill,  all  the  complainants  had  a  joint  right  to  pursue  an  inter- 
est in  the  land,  and  to  have  a  joint  decree  for  the  title.  By  the 
proof,  the  girls  were  to  have  a  claim  for  something  against  John 
and  William,  who  alone  were  to  have  the  title.  The  point  was  not 
particularly  brought  to  our  attention  on  the  original  hearing,  and 
the  question  escaped  a  critical  examination.  It  is,  nevertheless,  fatal 
to  the  decree.  The  proofs  and  allegations,  in  chancery  as  well  as 
at  law,  must  correspond." 

In  Libhey  v.  Hodgdon,  7  N.  II.  391,  it  is  said:  "  Tho  plaintiff 


330  AMENDMENTS. 


has  set  up  a  contract  for  an  absolute  conveyance  of  certain  lands ; 
this  is  part  of  an  entire  contract;  in  evidence,  it  appears  to  have 
been  subject  to  certain  exceptions  and  reservations.  We  think  the 
variance  is  substantial." 

"  It  is  true  that  there  were  cases  brought  distinctly  upon  and  for 
the  specific  performance  of  contracts ;  and  are,  therefore,  distin- 
guishable from  the  case  before  us,  which  is  not  brought  upon  the 
contract  in  respect  to  which  the  variance  occurs,  but  is  brought  to 
enforce  a  resulting  trust  arising  out  of  a  contract  in  reference  to 
lands,  made  between  the  defendant  and  a  third  person.  But  the 
case  of  Clements  v.  Kellogg,  1  Ala.  330,  bears  a  very  close  analogy 
to  the  case  at  bar,  and  seems  to  be  conclusive  to  the  effect  that 
where  a  resulting  trust  is  claimed  by  reason  of  a  contract,  or  title 
material  to  be  alleged,  a  variance  between  the  contract  or  title  al- 
leged and  proved,  is  fatal.  That  was  a  bill  in  chancery  brought 
by  a  minor  daughter  of  Theron  Kellogg,  deceased,  by  her  next 
friend,  against  Joshua  Clements,  seeking  to  compel  him  to  account 
for  the  profits  arising  from  the  occupancy  by  Clements,  in  his  life- 
time, of  "  six  thousand  four  hundred  arpens  of  land  and  a  saw- 
mill," of  which  Clements  and  the  complainant's  father  were  in  his 
lifetime  tenants  in  common.  The  proof  was  that  Clements  occu- 
pied "  six  hundred  and  forty  acres  and  saw-mill,"  of  which  the 
complainant's  father  was  the  sole  proprietor.  The  variance  was 
held  to  be  fatal." 

In  Hill  v.  Supervisor,  10  Ohio  St.  621,  the  court  say:  "Although 
the  language  of  pleadings  under  the  code  will  be  construed  accord- 
ing to  its  popular  and  ordinary  meaning,  that  meaning  must  con- 
form substantially  to  the  proof  on  the  trial.  Proof  that  the  de- 
fendant erected  a  stone  fence  fifteen  rods  from  a  road,  causing 
water  to  flow  upon  and  obstruct  a  road,  can  not  be  received  where 
the  cause  of  action  alleged  in  the  petition  is  that  the  defendant 
erected  a  fence  across  the  road,  thereby  obstructing  it.  The  peti- 
tion should  be  amended  in  such  a  case,  if  the  testimony  is  objected 
to  by  the  defendant,  whether  he  would  be  misled  or  not  by  the 
variance." 

Since  the  above  was  written  the  21  Ohio  St.  has  come  to  hand, 
in  which  is  found  a  decision  on  a  question  of  variance.  The  case 
is  that  of  Thatcher  v.  Heisey,  21  Ohio  St.  668.  This  is  the  whole 
case  as  found  in  the  report : 

By  the  court :  The  petition  stated  that  the  plaintiff  performed 
work  and  labor  for  the  defendant  on  his  mill-dam.  The  evidence 
offered  by  the  plaintiff  and  admitted  by  the  court,  was  that  the 


AMENDMENTS.  331 


plaintiff  performed  work  and  labor  for  the  defendant  in  his  har- 
vest field,  helping  him  to  harvest  his  grain.  Held,  that  the  vari- 
ance between  the  petition  and  the  evidence  was  material,  and  the 
evidence  should  not  have  been  admitted,  although  the  defendant 
neither  alleged  nor  offered  to  prove  that  he  had  been  misled  in 
any  respect  by  the  variance.  Hill  v.  Supervisor,  10  Ohio  St.  621, 
622,  proposition  4,  followed  and  approved.  Judgment  reversed 
and  cause  remanded. 


Sec.  132.  When  the  variance  is  not  material,  within  the  mean- 
ing of  section  131,  the  court  may  direct  the  fact  to  be  found  accord- 
ing to  the  evidence,  and  order  the  immediate  amendment,  so  as  to 
make  the  pleading  conform  to  the  proof,  without  costs. 


This  section  undertakes  to  qualify  section  131.  When,  how- 
ever, the  allegation  of  the  claim  or  defense,  to  which  the  proof  is 
directed,  is  unproved,  not  in  some  particular  or  particulars  only, 
but  in  its  general  scope  and  meaning,  it  is  not  deemed  a  case  of 
variance  within  the  last  two  sections,  but  a  failure  of  proof. 

In  this  latter  case,  it  would  seem  that  no  amendment  could  be 
made.  The  two  preceding  sections  provide  when  and  how  vari- 
ances disclosed  on  a  trial  may  be  amended.  This  section  declares 
that  the  class  here  mentioned  can  not  be  amended  under  those  two 
sections,  and  if  not  amendable  under  those,  they  are  not  of  course 
amendable  at  all. 

This  section  also  throws  light  on  the  extent  of  the  general  powers 
of  amendment  under  section  137.  The  case  provided  for  in  section 
133  is  the  case  where  one  cause  of  action  is  stated,  and  another 
proved  ;  and  in  these  cases  no  amendment  can  be  had.  And  why? 
Because  it  would  be  to  substitute  one  cause  of  action  for  another, 
and  thus  to  commence  a  new  action  under  the  false  pretense  of  an 
amendment.  This  the  code  does  not  permit ;  because  if  it  intended 
to  permit  it  to  be  done  before  a  trial,  there  is  the  same  reason  for 
permitting  it  to  be  done  after  a  trial.  The  amendments  are  to  be 
limited  to  cases  where  the  amendment  does  not  change  the  cause 
id'  action,  but  only  supplies  imperfections  and  omissions  in  setting 

il    nllt. 

Where  the  statement  is  larger  than  the  proof,  that  constituteH  a 
variance;  but  where  the  proof  exceeds  the  statement,  it  is  no  vari- 
ance. Marryat  arguendo  in  Mountstcphen  v.  Brook,  1  B.  &  Ad. 
255. 


?,?>2  AMENDMENTS. 


The  proper  lime  to  raise  the  question  of  variance  is  when  the 
party  lias  rested  his  case.     15  Ga.  210 ;  3  Hill,  237  ;  5  Wend.  301. 

In  an  action  on  a  conti-act,  there  is  no  variance  between  the  alle- 
gation of  a  sole  liability  and  proof  of  a  joint  undertaking  by  the 
defendant  and  another.  Carter  v.  Hope,  10  Barb.  S.  C.  180.  The 
defendant  must  plead  the  non-joinder  in  abatement,  otherwise  he 
can  not  take  advantage  of  it.  Such  has  been  the  law  since  Lord 
Mansfield's  time.     Fay  v.  Grimstead,  10  Barb.  S.  C.  321. 

Redundant  and  Irrelevant  Matter. 

Sec.  118.  If  redundant  or  irrelevant  matter  be  inserted  in  any 
pleading,  it  may  be  stricken  out  on  motion  of  the  party  prejudiced 
thereby. 

1.  What  is  redundant  and  irrelevant  matter? — By  redundant  mat- 
ter must  be  meant  averments,  which,  though  they  relate  to  the 
subject  matter  of  the  action,  are  not  yet  necessary  to  the  plaintiffs 
right  to  recover. 

Irrelevant  matter  must  be  such  as  has  no  relation  to  the  case 
made ;  and  is  what  in  chancery  would  have  been  called  impertinent 
or  frivolous.  The  redundant  matter  must  be  such  as  can  be  stricken 
out,  and  yet  leave  a  complete  cause  of  action.  The  same  is  also 
true  of  impertinent  matter ;  because,  if  after  the  matter  objected 
to  is  stricken  out  there  is  not  left  a  good  cause  of  action,  the  remedy 
is  by  demurrer.  8  Pr.  149 ;  Fabricolti  v.  Launity,  1  Code,  N.  S. 
121.  An  entire  complaint  can  not  be  stricken  out  as  irrelevant  or 
redundant.     Benedict  v.  Dake,  6  Pr.  352. 

If  the  matter  in  an  answer  can  have  any  influence  upon  the  de- 
cision of  the  cause,  it  is  not  impertinent.  4  Paige  Ch.  174.  The 
same  rule  will  apply  here.  "The  motion  to  strike  out  redundant 
or  irrelevant  matter  is  analogous  to  a  demurrer,  and  should,  I 
think,  be  decided  on  the  same  principles.  If  the  matter  can  not  be 
made  the  subject  of  a  material  issue,  it  has  no  business  in  the 
pleading,  and  ought  not  to  be  left  there  to  embarrass  the  opposite 
party  and  the  court.  Any  matter  which  upon  exceptions  for  im- 
pertinence under  the  chancery  practice  would  be  struck  out  as  un- 
necessary or  impertinent,  should,  on  motion,  be  struck  out  as  re- 
dundant or  irrelevant."  Per  Harris,  J.,  E.  &  W.  Plank  E.  Co.  v. 
Wetzel,  6  Pr.  68.  Matter  is  irrelevant  in  a  pleading  which  has  no 
bearing  on  the  subject  matter  of  the  controversy,  and  can  not  af- 
fect the  decision  of  the  court.  Fabricolti  v.  Launity,  1  Code,  N.  S. 
121.     Irrelevant  or  redundant  matter  must  be  such  as  can  not  be 


AMENDMENTS.  333 


reached  by  demurrer.  White  v.  Kidd,  4  Pr.  68 ;  Esmond  v.  Tan 
Benschoten,  5  Pr.  44  ;  Hull  v.  Smith,  8  Pr.  149.  By  irrelevant  or 
redundant  in  the  code,  I  take  it,  is  meant  what  is  usually  under- 
stood as  impertinent ;  for  a  pleading  in  equity  is  impertinent  when 
it  is  stuffed  with  long  recitals  or  long  digressions,  which  are  alto- 
gether unnecessary  and  totally  immaterial  to  the  matter  in  hand. 
1  Barb.  Ch.  Pr.  41 ;  Woods  v.  Mond,  1  Johns.  Ch.  106.  It  is  sur- 
plusage at  law,  According  to  Webster,  redundant  means  super- 
fluous, more  than  is  necessary,  superabundant ;  and  irrelevant,  not 
applicable,  or  pertinent,  not  serving  to  support.  Both,  therefore, 
may  probably  come  under  the  head  of  impertinence.  Prolixity 
may  become  redundance,  and  Lord  Eldon  held  that  needless  prolix- 
ity was  in  itself  impertinence.  See  4  Edw.  Ch.  426.  Per  Hand, 
J.,  Carpenter  v.  West,  5  Pr.  53.  Vide  also  Averill  v.  Taylor,  5  Pr. 
476;  8  lb.  149. 

It  has  been  made  a  question  whether  the  code  authorizes  the 
striking  out  every  redundant  or  irrelevant  matter.  Hynds  v.  Gris- 
wold,  4  Pr.  69  ;  White  v.  Kidd,  4  lb.  68 ;  But  Hand,  J.,  in  Carpen- 
ter v.  West,  5  Pr.  53,  doubts  the  propriety  of  such  a  restriction. 
''It  has  been  thought,"  he  says,  "  irrelevant  and  redundant  matter 
should  not  be  stricken  out  unless  a  party  is  aggrieved  or  prejudiced 
thereby.  With  deference,  I  doubt  that  this  is  so  to  the  fullest  ex- 
tent. As  to  scandalous  matter,  it  is  not  clear  that  a  person  not  a 
party  to  the  record  may  not  move  to  strike  it  out.  Coffin  v. 
Cooper,  6  Ves.  Jr.  514;  Williams  v.  Douglass,  5  Beavan,  82;  Ex 
parte  Simpson,  15  Ves.  Jr.  447  ;  5  lb.  656,  note.  And  the  court, 
it  seems,  will  do  it  without  application  of  any  one.  And  imper- 
tinence in  an  answer  was  always  exceptional.  My  own  impres- 
sions are,  that  as  to  scandalous  and  impertinent,  irrelevant  and  re- 
dundant matter,  the  code  has  not  in  any  respect  changed  the  former 
practice  in  equity  cases.  See  Shaw  v.  Jayne,  4  Pr.  119  ;  Knowles 
v.  Gee,  lb.  317.  Its  effect  on  what  before  the  code  would  have  been 
a  case  at  law  is  now  under  consideration.  If  this  view  is  correct, 
th<'  ad  verse  party  may  always  be  considered  aggrieved  by  scanda- 
lous, irrelevant,  impertinent,  and  redundant  matter  in  pleading.  I 
think  one  maybe  considered  aggrieved  by  the  interpolation  of 
matter  foreign  to  the  cause  into  the  pleadings  in  a  cause  in  which 
he  is  a  party;  and  he  always  had  a  right  to  have  the  record  expur- 
gated for  thai  reason,  without  reference  to  the  question  of  costs. 
St.  John  v.  St.  John,  11  Ves.  Jr.  52(1.  A  few  unnecessary  words 
will  not  make  a  pleading  impertinent.  Del.  Port  v.  Do  Tastel,  1 
Turn.  4  Bus.  486;  Des  Places  v.  Garris,  1  Edw.  Ch.  350.     And 


334  AMENDMENTS. 


courts  should  be  liberal,  especially  until  our  novel  system  of  plead- 
ing shall  have  become  better  settled  and  understood.  Every  fact, 
direct  or  collateral,  tending  to  sustain  the  general  allegations  of 
the  bill,  may  be  inserted,  if  done  in  a  proper  manner  .  Hawley  v. 
Wolvcrton,  5  Paige  Ch.  522;  Perry  v.  Perry,  1  Barb.  Oh.  519." 
This  opinion  is  undoubtedly  the  better  law.  Neither  party  has  a 
right  to  swell  the  record  with  irrelevant  and  redundant  matter  at 
the  expense  of  some  one  else.  Nor  has  a  party  a  right  to  intro- 
duce immaterial  issues  to  the  confusion  of  the  opposite  party.  He 
has  a  right  to  a  naked  case,  and  he  is  bound  to  answer  nothing 
more.  Indeed,  the  code  assumes  that  such  matter  is  to  be  stricken 
out  on  the  motion  of  the  party  prejudiced  thereby.  It  is  not  that 
such  redundant  and  irrelevant  matter  as  prejudices  one  may  be 
stricken  out;  but  it  is  to  be  stricken  out  by  the  prejudiced  party. 

A  demurrer  will  not  meet  a  case  when  the  pleading  contains  re- 
dundant or  irrelevant  matter.  Davies,  J.,  in  Smith  v.  Countryman, 
30  N.  Y.  655,  668,  says :  "If  the  new  matter  set  up  by  the  defend- 
ant, as  constituting  a  defense,  was  sham  or  irrelevant,  it  was  the 
duty  of  the  plaintiff  to  have  moved  on  notice  to  strike  it  out. 
Code,  sec.  152.  If  the  new  matter  did  not,  upon  its  face,  constitute 
a  defense,  it  was  the  duty  of  the  plaintiff  to  have  demurred  to  it. 
Code,  sec.  152.  The  practice  resorted  to  in  this  case,  to  correct  the 
pleadings  by  motion  at  the  trial,  is  not  warranted  by  the  code,  and 
should  not  be  encouraged."  This  objection  as  to  irrelevant  or  re- 
dundant matter  admits  that  there  is  enough  in  the  petition  to  con- 
stitute a  cause  of  action,  and  in  the  answer  enough  to  constitute  a 
defense  ;  hence  a  demurrer  will  not  lie  to  either.  The  remarks  of 
Marvin,  J.,  in  The  People  v.  Kyder,  12  N.  Y.  433,  437,  well  illus- 
trate what  is  redundant  or  irrelevant  matter.  "The  code,"  he 
says,  "requires  that  the  complaint  should  contain  a  plain  and  con- 
cise statement  of  facts  constituting  a  cause  of  action  without  un- 
necessary repetition.  Sec.  142.  This  rule  is  substantially  as  it 
existed  prior  to  its  enactment  in  actions  at  law.  Chitty  says,  in 
general,  whatever  circumstances  are  necessary  to  constitute  the 
cause  of  complaint  or  ground  of  defense  must  be  stated  in  the 
pleadings,  and  all  beyond  is  surplusage  ;  facts  only  are  to  be  stated, 
and  not  arguments  or  inferences,  or  matter  of  law,  in  which  re- 
spect the  pleadings  at  law  appear  to  differ  materially  from  those  in 
equity.  1  Chit.  PI.  245.  At  page  266,  he  says  it  is  a  most  impor- 
tant principle  of  the  law  of  pleading  that  in  alleging  the  fact  it  is 
unnecessary  to  state  such  circumstances  as  merely  tend  to  prove  the 
truth  of  it.     The  dry  allegation  of  the  fact,  without  detailing  a  va- 


AMENDMENTS.  335 

riety  of  minute  circumstances  which  constitute  the  evidence  of  it, 
will  suffice.  The  object  of  the  pleadings  is  to  arrive  at  a  specific 
issue  upon  a  given  and  material  fact ;  and  this  is  attained,  although 
the  evidence  of  such  fact  to  be  laid  before  the  jury  be  not  specific- 
ally developed  in  the  pleadings.  And  see  Firth  v.  Thrush,  8  B.  & 
C.  387;  Dyett  v.  Pendleton,  8  Cowen,  728."  All  else  but  this 
naked  fact  is  redundant  and  irrelevant;  it  has  nothing  to  do  with 
the  issue  to  be  come  at,  and  hence  should  be  stricken  out  as  calcu- 
lated to  mislead  the  jury  and  give  trouble  to  the  court  in  separat- 
ing what  is  material  from  what  is  immaterial. 

If  evidence  is  stated  and  not  denied,  its  truth  is  not  admitted. 
Issue  can  not  be  taken  on  what  is  mere  evidence ;  much  less  upon 
wholly  immaterial  matter. 

2.  When  the  motion  must  be  made. — The  motion  must  be  made  at 
the  first  opportunity ;  before  the  answer,  if  it  is  contained  in  the 
petition,  and  before  a  reply,  if  contained  in  the  answer.  Isham  v. 
Williamson,  7  Leg.  Obs.  3-10  ;  Korlies  v.  Delaplaine,  2  Sandf.  S.  C. 
680.  So  where  a  party  obtains  further  time  to  answer  or  reply,  he 
has  waived  his  right  to  object  for  impertinence.  lb.  So  noticing 
a  case  for  trial  is  a  waiver.     Esmond  v.  Van  Benschoten,  5  Pr.  44. 

3.  How  it  must  be  made. — The  motion  should  state  specifically 
the  matter  objected  to.  Whitmarsh  v.  Campbell,  1  Paige  Ch.  645. 
Nor  should  it  include  any  passage  which  is  not  impertinent ;  if  it 
docs,  it  must  be  overruled  in  whole.  lb.  Buloid  v.  Miller, 4  Paige 
Ch.  473.  Yet  where  the  impertinent  matter  is  so  blended  with 
matter  that  is  pertinent  that  it  is  impossible  to  separate  them,  the 
whole  may  be  excepted  to  and  struck  out  for  impertinence.  Nor- 
ton v.  Woods,  5  Paige's  Ch.  200.  The  exception  must  be  in  writ- 
ing and  referred  to  a  master  to  examine  and  report  on.  Woods  v. 
Morell,  1  Johns.  Ch.  103;  5  Blackf.  439 ;  2  Hay.  407;  Mason  v. 
■Mason,  4  Hen.  &  Munf.  414. 

FORM   OP    MOTION. 

A  B,  plaintiff,   |  County,  ss. 

C  D,  defendant.  }  Court  of  Common  Pleas. 

And  the  said  C  D,  defendant,  now  comes  and  moves  the  court 
bere  to  strike  out  of  the  petition  (or  answer)  in  this  cause,  as  re- 
dundant  and  irrelevant  matter,  the  following  words,  to  wit:  (Mere 


336  AMENDMENTS. 


add  the  words  claimed  to  be  redundant  and  irrelevant,  taking  care  to 
include  only  those  wished  to  be  stricken  out.) 

CD, 
By  E  F,  his  Attorney. 

Note.— A  change  of  names  will  bo  all  that  is  required  to  change 
the  above  form  so  as  to  render  it  applicable  to  an  answer. 

VII.  Indefinite  and  uncertain  Pleadings. 

Sec.  118.  And  when  the  allegations  of  a  pleading  are  so  indef- 
inite and  uncertain  that  the  precise  nature  of  the  charge  or  defense 
is  not  apparent,  the  court  may  require  the  pleading  to  be  made 
definite  and  certain  bv  amendment. 


In  Otis  v.  Eoss,  8  Pr.  193,  Shankiand,  J.,  was  inclined  to  think 
this  clause  did  not  apply  to  mere  denials,  but  to  new  matter  con- 
tained in  an  answer.  So  where  a  petition  contained  two  causes  of 
action  witbout  any  distinct  separation  of  them,  it  was  held  that  the 
pleading  was  indefinite  and  uncertain,  and  should  be  corrected  on 
motion,  and  not  demurred  to.  Wood  v.  Anthony,  9  Pr.  79 ;  Eob- 
inson  v.  Judd,  9  Pr.  378.  The  case  of  Cahoon  v.  Bank  of  Utica, 
3  Selden,  486,  seems  to  throw  doubt  on  these  cases,  so  far  as  they 
decide  that  duplicity  can  not  be  taken  advantage  of  on  demurrer. 
Jewett,  J.,  says:  "I  think  that  the  complaint  is  bad,  because  it 
unites  two  causes  of  action  without  stating  them  separately,  and 
because  they  do  not  belong  to  any  one  class  as  specified  in  section 
167.  of  which  there  are  seven.  The  separate  statement  of  a  cause 
of  action,  and  the  separate  counts  of  a  declaration,  are  equivalent 
terms.  The  necessity  of  having  each  stated  by  itself  in  a  different 
count,  is  as  imperative  under  the  code  as  under  the  former  mode 
of  pleading."  The  majority  of  the  court  thought  there  was  but 
one  cause  of  action  stated  in  the  petition,  and  hence  must  have 
agreed  with  Jewett,  J.,  on  his  proposition. 

This  part  of  section  118  would  seem  to  give  the  court  power  to 
act  on  its  own  motion,  in  order  to  compel  parties  to  make  their 
pleadings  so  definite,  that  a  distinct  issue  may  be  presented  to  the 
court  and  the  jury.  If  the  petition  states  no  cause  of  action,  be- 
cause it  is  too  indefinite  to  say  what  it  means,  then  it  will  be  open 
to  a  demurrer. 

It  would  seem  that,  since  duplicity  can  be  raised  on  demurrer, 
this  clause  can  seldom  be  of  any  use  as  between  parties,  but  may 
be  so  to  the  courts,  where  the  parties  are  disposed,  as  they  often 


AMENDMENTS.  337 

are,  to'  try  cases  without  any  definite  issue  being  made  up  in  the 
case. 

In  the  case  of  Union  Bank  v.  Bell,  14  Ohio  St.  200,  208,  the 
court  say :  ';  Seven  causes  of  demurrer  are  assigned.  The  first 
four  of  them  consist  solely  of  an  alleged  want  of  definiteness  and 
certainty  in  the  averments  of  matters  of  fact  contained  in  the  an- 
swer. Now,  if  the  allegations  of  the  answer  were  so  indefinite  and 
uncertain  that  the  precise  nature  of  the  defense  was  not  apparent, 
the  remedy  is  by  motion  to  the  court  to  require  the  pleading  to  be 
made  more  definite  and  certain  by  amendment,  according  to  the 
provisions  of  section  118  of  the  code  of  civil  procedure.  The  indefi- 
niteness  and  uncertainty  of  pleading  can  not  be  remedied  or  taken 
advantage  of  by  demurrer.  Trustees  v.  Odlin,  8  Ohio  St.  293; 
Lewis  v.  Coulter,  10  Ohio  St.  451.  Considering,  however,  the  re- 
lations of  the  parties  in  this  case,  and  that  the  facts  alleged  gen- 
erally in  the  answer,  by  way  of  defense  to  the  action,  are,  in  their 
particulars,  peculiarly  within  the  knowledge  of  the  plaintiff,  we 
think  that  the  same  stringent  rules,  in  respect  of  definiteness  and 
certainty  of  allegation,  ought  not  to  be  applied  to  the  now  defend- 
ants, as  these  might  properly  be,  if  the  minute  facts  generally 
stated  by  them  in  their  answer  were,  from  the  nature  of  the  case, 
as  well  known  to  them  as  they  are  to  the  plaintiff,  and  we  are, 
therefore,  of  opinion  that  even  if  a  motion  had  been  made  for  that 
purpose,  the  courts  below  would  hardly  have  been  required  to  com- 
pel the  defendants  to  make  the  allegations  of  their  answer  more 
definite  and  certain."  The  answer  in  this  case  was  of  matters 
wholly  transpiring  between  the  plaintiff  and  another  party,  of 
which  the  defendants  answering  could  in  law  be  presumed  to  have 
no  knowledge  ;  hence  they  were  allowed  to  plead  generally  under 
the  strictest  rules  of  common-law  pleading.  See  review  of  Saun- 
ders  V.  Stotts,  reported  in  G  Ohio,  380  ;  2  Western  Law  Journal,  297, 
where  this  subject  is  discussed,  and  the  cases  examined.  A  plea 
of  covin  may  be  general,  because  covin  is  a  fraud,  between  two  or 
more  to  cheat  a  third  person  ;  hence  in  pleading  the  fraud  he  may 
aver  it  generally.  So,  too,  when  the  facts  are  in  the  knowledge  of 
the  opposite  party  rather  than  in  the  one  pleading. 

Smith,  .!..  in  Kerr  v.  Hays,  35  N.  Y.  331,  discusses  this  question. 
"The  plaintiff,"  he  -ays.  "objected,  in  the  first  place,  to  the  de- 
fendant s  showing  under  his  answer  a  right  of  way,  or  a  way,  on 
the  premises,  because  the  facts  giving  a  way,  or  a  right  of  way, 
veere  doI  ael  otri  in  the  answer.  The  defendant  had  pleaded  sep- 
vol.  i—22 


338  AMENDMENTS. 


arately  a  public  highway,  and  a  right  of  way  in  himself,  and  the 
objection  was  to  his  giving  evidence  under  either  plea.  If  either 
plea  was  sufficient,  the  objection,  being  general,  was  not  tenable. 
The  answer  setting  up  a  public  highway  was  sufficient  under  the 
rules  of  pleading  existing  before  the  code,  as  well  as  since.  In  the 
case  of  Aspindall  v.  Brown,  3  Term,  2GG,  it  was  held  that,  in 
pleading  a  public  highway,  it  is  sufficient  to  state  concisely  that  it 
is  a  public  highway,  without  showing  how  or  when  it  became  so. 
The  reason  assigned  in  the  case  above  cited  is  that,  if  the  rule  were 
otherwise,  great  inconveniences  would  follow,  for  strangers  passing 
along  the  streets  of  London  could  not  ascertain  when  they  first  be- 
came highways.  This  mode  of  pleading  a  public  highway  is  in 
harmony  with  the  code,  as  it  is  a  concise  statement  of  an  issuable 
fact.  In  respect  to  pleading  a  private  way,  the  rule  is  different. 
The  party  claiming  a  private  way  is  supposed  to  be  cognizant  of 
the  origin  of  the  right  and  the  extent  of  it,  and  he  must,  therefore, 
aver  his  title  and  the  termini  of  the  way.  1  Arch.  Nisi  Pius,  457. 
But  the  plaintiff  did  not  invoke  the  benefit  of  that  rule,  as  he  did 
not  object  specifically  to  the  introduction  of  evidence  under  that 
branch  of  the  answer  which  alleged  a  private  way. 

"Again,  if  the  plaintiff  had  taken  that  specific  objection  on  the 
trial,  it  would  not  then  have  been  available  to  him.  If  the  answer 
was  defective,  it  was  only  so  because  it  alleged  the  private  way  in 
too  general  terms.  It  was  not  sufficiently  definite  and  certain  in 
that  respect.  The  remedy  of  the  plaintiff  for  that  defect  was  by 
motion,  by  section  160  of  the  code,  to  compel  the  defendant  to 
make  the  answer  more  definite  and  certain.  By  omitting  that 
remedy,  he  was  precluded  from  objecting  to  the  evidence  on  the 
trial.     3  Kern.  538;  15  N.  Y.  425  ;  18  N.  Y.  119." 

This  case  shows  very  clearly  what  is  meant  by  a  want  of  cer- 
tainty and  definiteness  in  one  form  of  it.  He  plead  he  had  a 
private  road;  now  he  should  set  out  how  and  when  that  private 
road  was  obtained,  and  the  extent  of  it,  and  what  right  he  had 
under  it.  On  a  motion,  the  defendant  w7ould  have  been  compelled 
to  set  out  all  these  facts;  but,  going  to  trial  on  the  general  aver- 
ment, the  question  of  private  road,  or  no  private  road,  was  in  issue, 
and  could  be  tried  under  that  general  plea. 

An  answer  may  want  definiteness  in  either  of  two  ways:  1.  It 
may  not  state  all  the  facts  necessary  to  be  stated,  with  a  general 
averment;  or,  2.  It  may  arise  from  the  pleading  not  showing  with 
certainty  what  is  its  specific  meaning;  there  may  bo  an  uncer- 
tainty as  to  its  precise  meaning.     In  either  case,  by  motion,  the 


AMENDMENTS.  339 


pleader  can  be  required  to  supply  the  omission  in  the  one  case,  and 
render  certain  which  of  two  or  several  meanings  he  attaches  to 
his  answer.  But  if  the  party  fails  to  do  this,  and  the  case  goes 
to  trial,  the  court  will  construe  the  pleading  in  consistency  with 
the  evidence  ;  or,  if  that  can  not  be  done,  the  court  will  direct,  on 
the  trial,  the  issue  to  be  conformed  to  the  evidence  in  the  case,  and 
that  should  be  done  without  costs,  as  the  fault  lies  as  much  on  the 
one  party  as  the  other.  Both  parties,  in  going  to  trial,  admit  that 
there  is  an  issue  to  be  tried,  and  that  the  record  presents  that 
issue.  If  both  part  its  are,  in  the  opinion  of  the  court,  mistaken 
as  to  the  true  effect  of  the  issue  made,  no  costs  in  correcting  this 
mistake  should  be  charged  to  either  party. 

But  there  is  here  a  remark  to  be  made:  before  a  motion  can  be 
required,  there  must  be  some  sort  of  averment  on  the  particular 
fact  claimed  to  be  indefinite.  If  there  is  the  total  absence  of  any 
averment  of  a  particular  fact  necessary  to  be  stated  to  make  a  good 
petition  or  answer,  a  demurrer  will  lie.  A  party  can  not  compel  a 
motion  to  supply  omissions  in  his  petition  or  answer.  There  must 
be  some  sort  of  an  averment  of  a  material  fact  in  order  to  require 
a  motion.  The  case  above  cited  shows  one  aspect  of  the  question ; 
the  other  kind  arises  when  the  pleader,  in  reading  the  pleadings 
of  his  adversary,  finds  himself  in  doubt  as  to  what  the  pleader 
meant  by  it.  To  illustrate  a  case,  let  us  suppose  a  suit  by  an  in- 
dorsee against  the  maker,  and  there  is  an  omission  of  any  aver- 
ment of  the  indorsement  of  the  note  ;  here  there  is  nothing  to  be 
made  more  definite  ;  there  is  the  total  absence  of  the  averment  of 
the  material  fact,  and  the  pleading  is  open  to  a  demurrer.  So 
where  the  indorsee  sues  the  indorser,  and  omits  to  aver  demand 
and  notice.  So  in  an  action  lor  malicious  prosecution,  if  there  is 
an  omission  of  an  averment  of  a  want  of  probable  cause,  the  peti- 
tion is  bad  on  demurrer.  In  all  these  cases,  it  is  the  total  absence 
of  a  material  fact,  not  an  indefinite  statement  of  it,  in  which  the 
pleading  is  defective.  A  defective  averment  is  one  thing;  no  aver- 
ment at  all  is  another  ami  different  thing. 

If  the  pleader  omits  the  Christian  names  of  the  parties  to  the 

action  without  the  allegation  of  a  sufficient  excuse,  the  pleadings 

will  he  indefinite  and  uncertain.     Applemans  v.  Blanche,  14  Mees. 

&  Wels.    1"»1  :    Bsdaile   V.    .Maclean.  1.")    11).   277.     The  averment  of 

iiwi  traversable.     Lb. 

In  Btating  the  ti of  the  occurrence  of  events,  it  is  sufficient  to 

Kay  thai  -mil  an  evenl  occurred  thereafter.    Martin  v.  Kanouse, 
2  Aim.  331:    Kellogg  V.  Baker,  15  ih.  287;  Brown  v.  Harmon,  21 


340  AMENDMENTS. 


Barb.  510;  Beesley  v.  Dolby,  G  Bing.  X.  C.  37;  Bertinc  v.  Varian, 

I  Edw.  Ch.  343;  Jackson  v.  Johnson,  5  Ala.  X.  S.  191;  Potter  v. 
Thompson,  22  Barb.  87.  If  the  lime  when  an  event  happened,  is 
material  to  the  cause  of  action,  it  should  be  stated;  but  if  the  time 
is  immaterial,  a  demurrer  will  not  lie  for  omitting  it.  The  remedy 
is  to  apply  to  make  it  more  certain.  People  v.  Eyder,  12  X.  Y. 
133,  439  ;  Barnes  v.  Mattison,  5  Barb.  378 ;  Nash  v.  Brown,  18  Law 
.lour.  X.  S.  62  ;  Payne  v.  Banner,  15  lb.  227;  Marshall  v.  Powell, 
8  Law  Times,  Q.  B.  159  ;  13  Jur.  126. 

If  an  averment  is  made  of  an  offer  to  pay  on  the  proper  day, 
and  a  different  day  is  stated  under  videlicet,  it  is  inconsistent  and 
the  last  date  should  be  rejected  as  surplusage.     Lester  v.  Jewett, 

II  X.  Y.  400;  Vail  v.  Lewis,  4  Johns.  450;  G-leason  v.  McVicker, 
7  Cowen,  42 ;  Lyon  v.  Clark,  8  X.  Y.  148 ;  Dubois  v.  Beaver,  25 
X.  Y.  123. 

Where  a  contract,  void  by  the  laws  of  the  forum,  is  sought  to  be 
enforced,  the  plaintiff  must  aver  the  place  where  it  was  made  and 
the  law  of  the  place  which  authorized  it  to  be  made.  Watcher  v. 
Morris,  11  X.  Y.  437,  440.  And  it  is  a  general  rule  of  pleading 
that  if  the  matters  are  local  in  their  nature,  the  allegation  and 
proof  of  place  is  material.  Yermilya  v.  Beaty,  6  Barb.  430;  Steph. 
PI.  288;  Beach  v.  Bay  State,  18  How.  335 ;  30  Barb.  433 ;  10  Abb.  71. 

An  entire  pleading  can  not  be  stricken  out  under  these  sections. 
Benedict  v.  Dake,  6  How.  352  ;  Hull  v.  Smith,  1  Duer,  649;  Howell 
v.  Knickerbocker  Life  Ins.  Co.,  24  How.  475;  Blake  v.  Eldred,  18 
lb.  240.  It  is  too  late  after  the  trial  to  object  that  pleadings  are 
indefinite.  Bank  v.  Sherman,  6  Bosw.  181 ;  S.  C,  33  X.  Y.  69 ;  29 
How.  573. 

Examples  of\ncertain  or  indefinite  averments. — That  the  plaintiff 
was  duly  appointed  receiver.  White  v.  Joy,  13  X.  Y.  83,  86 ;  Gil- 
lett  v.  Fairchild,  4  Denio,  83.  That  the  defendant  had  made  re- 
peated acknowledgments.  Bloodgoodu.  Buren,  8X.  Y.  362.  That 
the  plaintiff  is  indebted  on  account  of  previous  transactions.  Eno 
v.  Woodworth,  4  X.  Y.  249.  The  words,  a  large  sum,  without  ref- 
erence to  any  amount.  Heywood  v.  City  of  Buffalo,  14  X.  Y.  534, 
544.  That  the  defendant  "covenanted."  Austin  v.  Searing,  16 
X.  Y.  112.  This  was  a  contention  between  members  of  an  Odd 
Fellows'  lodge.  The  petition  averred  that  each  member  covenanted 
with  each  and  all  to  observe  the  constitution.  This  was  held  in- 
sufficient, in  not  stating  how  covenanted,  and  setting  it  out.  That 
the  award  was  duly  made  by  the  referees.     Everard  v.  Patterson, 


AMENDMENTS.  341 


6  Taunt.  G25.  That  plaintiff  Avas  duly  appointed  administrator. 
Beach  v.  King,  17  Wend.  198.  That  the  act  was  done  in  a  sus- 
picious manner,  Muse  v.  Kaye,  4  Taunt.  34;  or  according  to 
statute,  Walker  v.  Maxwell,  1  Mass.  104;  or  contrary  to  statute. 
Smith  v.  Lockwood,  13  Barb.  209.  That  by  virtue  of  a  certain 
-writ  or  other  -warrant,  etc.  1  Sauncl.  298,  note  1.  Or  that  the  act 
was  done  in  due  course  of  law.  Currie  v.  Henry,  2  Johns.  437. 
That  he  was  compelled  to  pay  by  a  court  of  competent  jurisdic- 
tion, without  stating  what  court.  Packard  v.  Hill,  7  Cowen,  442  ; 
Patton  v.  Footc,  1  Wend.  209.  That  the  defendant  was  bound  to 
repair.  Casey  v.  Mann,  5  Abb.  91 ;  S.  C,  14  How.  163;  Corey  v. 
Mann,  6  Duer,  G79.  That  a  ship  was  seized  as  prize.  Beak  v. 
Tyrrell,  Carth.  31. 

The  precise  parts  of  the  pleading  objected  to  must  be  pointed 
out  by  the  motion,  so  that  the  order  when  made  may  be  definite. 
If  it  covers  words  not  liable  to  be  stricken  out,  the  motion  will  be 
overruled.     Bryant  v.  Bryant,  2  Bob.  G12. 

FORM    OF    MOTION. 

A  B,  plaintiff,  ")  Q 

C  D,  defendant.  )  Court  of  Common  Pleas. 

And  the  said  A  B,  plaintiff,  now  comes  and  moves  the  court  here 
to  order  the  said  C  D  to  make  his  pleadings  and  issues  in  this  peti- 
tion definite  and  certain  within  a  reasonable  time ;  or,  on  failure  to 
do  so,  that  the  answer  of  the  said  defendant  may  be  stricken  out. 
Dated,  etc. 

AB, 
By  ,  his  Attorney. 

ANOTHER  FORM  BY  DEFENDANT. 

And  the  said  C  D,  defendant,  now  comes  and  moves  the  court 
here  to  order  the  said  plaintiff  to  make  his  said  petition  definite 
and  certain,  by  separately  stating  his  said  causes  of  action,  (or,  by 
Betting  forth  his  said  cause  of  action  distinctly  and  methodically.) 
and  so  as  to  permit  a  distinct  issue  to  be  raised  on  each  material 
fact  constituting  his  cause  of  action. 

CD, 
By  ,  his  Attorney. 


342  AMENDMENTS. 


ORDER. 

A  B,  plaintiff,   ) 

vs.  [  Petition. 

C  D,  defendant. J 

And  now  came  the  said  parties  by  their  attorneys,  and  thereupon 
the  motion  of  the  said  C  D,  defendant,  (or,  the  said  A  B,  plaintiff,) 
came  on  to  he  heard,  and  was  argued  by  counsel ;  on  consideration 
whereof  the  court  find  that  the  said  plaintiff  has  included  in  his 
said  petition  several  causes  of  action  in  a  single  statement  or  count, 
(or,  that  the  said  plaintiff  hath  so  loosely  stated  his  cause  of  action, 
that  it  is  difficult  for  the  court  to  understand  its  precise  meaning 
and  extent;)  it  is  therefore  ordered  that  the  said  plaintiff  correct 
his  said  petition  within  days,  (or,  instanter,)  by  separately 

stating  his  said  causes  of  action  ;  (or,  by  more  definitely  and  clearly 
stating  the  facts  constituting  his  cause  of  his  action.) 


VIII. —  Consolidation  of  Actions. 

Sec.  143.  Whenever  two  or  more  actions  are  pending  in  the 
same  court,  which  might  have  been  joined,  the  defendant  may,  on 
motion  and  notice  to  the  adverse  party,  require  him  to  show  cause 
why  the  same  shall  not  be  consolidated  ;  and  if  no  such  cause  be 
shown,  the  said  several  actions  shall  be  consolidated. 

Sec.  144.  The  order  for  consolidation  may  be  made  by  the  court, 
or  by  a  judge  thereof  in  vacation. 


1.  The  parties  to  the  actions  must  be  the  same.  Brewster  v. 
Stewart,  3  Wend.  44 ;  2  Nott  &  McCord,  440  ;  People  v.  McDon- 
ald, 1  Cowen,  189. 

2.  The  actions  must  be  such  as  might  have  been  joined.  Hence, 
the  cause  of  action  in  the  second  suit  must  have  accrued  at  the 
time  the  first  action  was  brought,  otherwise  they  could  not  have 
been  joined;  though  in  Dunning  v.  Bank  of  Auburn,  19  Wend. 
23,  a  consolidation  was  ordered,  though  one  suit  was  commenced 
before  the  cause  of  action  in  the  other  suit  had  accrued.  This  is> 
however,  against  the  whole  current  of  authority. 

3.  Still  it  is  a  matter  of  discretion  with  the  court  whether,  where 
these  facts  exist,  the  consolidation  will  be  ordered.  It  is  a  motion 
addressed  to  the  discretion  of  the  court.  McRae  v.  Boast,  3  Rand. 
481  ;  Scott  v.  Brown,  1  Nott  &  McCord,  417,  note ;  Powell  v.  Gray, 
1  Ala.  77  ;  Cecil  v.  Briggs,  2  D.  &  E.  G39 ;  1  Tid.  556,-  The  rule  is 
thus  stated  in  Thompson  v.  Shepherd,  9  Johns.  2C2  :  The  motion 


AMENDMENTS.  343 


for  this  rule  must  be  denied.  The  notes  are  of  different  dates,  dif- 
ferent sums,  and  payable  at  different  times;  and  for  anything  that 
appears,  different  defenses  may  be  set  up  in  the  several  suits.  To 
compel  a  consolidation  under  such  circumstances  would  be  going 
further  than  is  the  usual  practice  in  this  court,  or  the  K.  B.  in 
England  (1  Caine),  114,  though  the  case  of  Cecil  v.  Briggs,  2  Term, 
G39,  would  seem  to  extend  the  consolidation  rule  to  all  actions  be- 
tween the  same  parties,  and  brought  at  the  same  time,  where  the 
causes  of  action  might  be  comprised  in  the  same  declaration.  A 
liberal  extension  of  this  rule  is  well  calculated  to  prevent  oppres- 
sion by  an  unnecessaiy  accumulation  of  costs,  and  we  should  be 
inclined  to  say,  that  where  separate  suits  are  brought  upon  notes 
or  contracts  made  at  the  same  time,  and  which  might  have  been  united 
in  one  action,  and  when  the  defense  is  the  same  in  all,  a  consolida- 
tion rule  ought  to  be  granted. 

So  where  the  defendant  proposes  to  make  no  defense,  the  actions 
ought  to  be  consolidated,  to  save  the  defendant  costs,  provided  in 
other  respects  they  come  within  the  rule.  Wilkinson  v.  Jones,  4 
Hill,  46. 

The  consolidation  is  made  for  the  benefit  of  the  defendant ;  and 
hence,  if  he  objects,  no  consolidation  can  take  place.  Graff  v.  Mus- 
ser,  3  S.  &  E.  262;  1  Overt.  396. 


NOTICE. 


A  B,  plaintiff,  ^  County,  ss. 


C  D,  defendant.  \   Court  of  Common  Plcas' 

The  said  A  B,  plaintiff,  will  hereby  take  notice  that  he  is  re- 
quired to  show  cause,  on  the  first  day  of  the  next  term  of  said 
court,  or  as  soon  thereafter  as  the  motion  can  be  heard,  why  the 
f'uui-  several  actions  now  depending  in  said  court  in  favor  of  the 
said  plaintiff,  and  against  this  defendant,  should  not  be  consoli- 
dated into  one;  at  which  time  and  place  you  can  appearand  ob- 
ject, if  you  sec  fit. 
Dated,  etc. 

CD, 
By  E  F,  his  Attorney. 

Note.— If  the  application  is  to  be  made  to  a  judge,  the  notice 
must  specifically  state  the  time,  place,  and  judge  before  whom  the 
application  is  to  \>r  beard.    These  words  can  be  inserted  after  the 


344  AMENDMENTS. 


word  '•  defendant. :  "  "  Will  apply  to  the  Hon.  ,  judge  of  said 

court,  at  his  residence,  in  the  town  of  ,  at  one  o'clock  on  the 

day  of  ,  a.  d.  18     ,"— in  lieu  of  those  referring  to  time 

and  court. 

Actions  between  same  Parties. 

MOTION. 

A  B,  plaintiff,  |  County,  ss. 

n  -r^    iVi'     t     4.   (    Court  of  Common  Pleas. 
C  D,  defendant.  ) 

And  now  conies  the  said  C  D,  defendant,  and  moves  the  court 
here,  (or,  the  Hon.  ,  [one  of  the  judges  of  said  court]  )  to 

consolidate  into  one  the  four  several  actions  now  depending  in  this 
court,  in  each  of  which  the  said  A  B  is  plaintiff,  and  the  said  C  D 
is  defendant,  and  which  actions  could  all  have  been  joined  in  one 
action. 

Dated,  etc.  c  D, 

By  E  F,  his  Attorney. 

Actions  between  Same  Parties. 

A  B,  plaintiff, 

vs. 
C  D,  defendant. 

On  motion  of  the  said  C  D,  by  E  F,  his  attorney,  and  on  proof 
of  notice  to  the  said  plaintiff  having  been  given,  and  no  sufficient 
cause  to  the  contrary  being  shown  by  the  said  A  B,  it  is  hereby 
ordered  that  the  said  four  several  actions  be  consolidated  into  one 
action,  and  all  the  said  several  causes  of  action  be  included  in 
one  and  the  same  petition  ;  and  it  is  further  ordered  that  the  said 
plaintiff  within  days  file  such  a  petition  in  this  case,  being 

the  first  on  the  docket,  including  all  the  said  several  causes  of 
action  sued  for  in  all  of  said  four  several  actions  ;  and  it  is  further 
ordered  that  the  said  A  B  pay  all  the  costs  incurred  in  all  of  said 
actions  but  this,  and  is  not  allowed  to  tax  the  same  to  the  defend- 
dant,  the  said  C  D. 

Kote. — This  form  will  need  but  a  slight  alteration  to  make  it 
answer  for  one  by  a  judge :  "  On  application  of  the  said  C  D,  etc., 
to  me,  S  JST,  one  of  the  judges  of  said  court,  and  no,"  etc. 

Where  the  pleading  of  an  averment  is  too  indefinite,  the  defect 
can  only  be  reached  by  motion  to  make  it  more  definite,  and  not 
by  a  demurrer.     Lewis  v.  Coulter,  10  Ohio  St.  451. 

Where  causes  of  action  are  not  stated  separately,  the  defect  can 
only  be  reached  on  motion.    Hartford  v.  Bennett,  10  Ohio  St.  441. 


FORMS    OP    PETITIONS.  345 


CHAPTER   XVIII. 


FOEMS    OF    PETITIONS. 

Beginnings  of  Petitions. 

County,  ss.,  Court  of  Common  Pleas. 
A  B,  plaintiff,  ") 

vs.  >  Petition. 

C  D,  defendant. ) 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  etc. 

BY    PARTNERS    V.    PARTNERS. 

County,  ss.,  Court  of  Common  Pleas. 

A  B,  C  D,  and  E  F, 

doing  business  under  the  name  of 

A  B  &  Co.,  plaintiffs, 

vs.  )■  Petition. 

GH&IJ, 
doing  business  under  the  name  of 
II  &  J,  defendants. 

The  said  A  B,  C  D,  and  E  F,  partners,  doing  business  under  the 
name  of  A  B  &  Co.,  plaintiffs,  complain  of  G  H  and  I  J,  partners, 
doing  business  under  the  name  of  H  &  J,  defendants,  for  that,  etc. 

BY    INFANT. 

County,  ss.,  Court  of  Common  Pleas. 
A  B,  an  infant, 


By  E  F,  his  next  friend,  plaintiff,  I    petition 
vs. 
C  P,  defendant.  J 

The  said  A  15.  by  B.  P,  who  is  admitted  by  the  court  here  to 
prosecute  for  the  said  A  B,  who  is  an  infant,  under  the  age  of 
twenty-one  years,  (if  a  male;  eighteen  years,  if  a  female;')  as  the 
next  friend  of  the  said  A  15.  plaintiff,  complains  of  the  said  C  1), 
defendant,  for  that,  etc. 


346  FORMS   OF   PETITIONS. 


By  and  against  Executors  and  Administrators. 

EXECUTOR   V.    EXECUTOR. 

A  B,  executor  of  E  F,  plaintiff,  ~\ 

VS.  j-  Petition. 

C  D,  executor  of  G  II,  defendant.  ) 

The  said  A  B,  executor  of  the  last  will  and  testament  of  E  F, 
deceased,  plaintiff,  complains  of  C  D,  executor  of  the  last  will  and 
testament  of  G  II,  deceased,  for  that,  etc. 

ADMINISTRATOR   V.    ADMINISTRATOR. 

A  B,  administrator  of  E  F,  plaintiff,    ~) 

vs.  >  Petition. 

C  D,  administrator  of  G.  H,  defendant.  ) 

The  said  A  B,  administrator  of  the  estate  of  E  F,  deceased, 
plaintiff,  complains  of  C  D,  administrator  of  the  estate  of  G  H, 
-deceased,  defendant,  for  that,  etc. 

ADMINISTRATOR   WITU    WILL    ANNEXED. 

The  said  A  B,  administrator,  with  the  last  will  and  testament  of 
G  C,  deceased,  annexed,  of  the  estate  which  was  of  the  said  G  C, 
deceased,  plaintiff,  complains  of  C  D,  defendant,  for  that,  etc. 

SURVIVING   PARTNER   V.    SURVIVING   PARTNER. 

A  B,  plaintiff,  ~) 

vs.  >  Petition. 

C  D,  defendant.  ) 

The  said  A  B,  survivor  of  E  F,  doing  business  under  the  name 
of  A  B  &  Co.,  plaintiff,  complains  of  C  D,  survivor  of  H  S  and 
N  O,  doing  business  under  the  name  of  D  H  &  Co.,  defendants, 
for  that,  etc. 

Where  there  are  several  Causes  of  Action  in  the  same  Petition. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant : 
First.  For  that  the  said  (Jiere  state  the  first  cause  of  action);  Secondly. 
And  also  for  that  (Jiere  state  the  second  cause  of  action);  Thirdly. 
And  also  for  that  (here  state  the  third  cause  of  actioji).  And  the 
said  plaintiff  saith  that  said  defendant  hath  not  paid  several  sums 
of  money,  or  either  of  them,  or  any  part  thereof,  to  the  said 
plaintiff. 


FORMS   OF   PETITIONS.  347 


Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendant for  the  said  several  sums  of  money,  amounting  to  S 
together  with  interest  thereon  from  the         day  of  ,  a.  d.  18     . 

(Or,  if  the  interest  on  the  various  sums  does  not  date  from  same 

time,  then  say:)  together  with  interest  on  $  from  day  of 

;  on  3  from  such  a  day  ;  on  3  from  such  a  day,  etc. 

The  matter  of  interest  should  be  so  stated,  that  the  court  can 
calculate  it  on  a  default,  from  the  statements  in  the  petition. 

Andrews,  J.,  in  Daby  v.  Ericsson,  45  N.  Y.  786,  789,  thus  states 
the  law :  "Upon  the  death  of  one  partner,  the  demands  and  choses 
in  action  of  the  partnership  belong  to  the  surviving  partners,  and 
they  possess  the  sole  and  exclusive  right  to  reduce  them  to  posses- 
sion, and  when  recovered,  they  stand  as  trustees  for  the  representa- 
tives of  the  deceased  partner  to  the  extent  of  his  interest." 

The  law  not  only  vests  the  legal  title  to  the  choses  in  action  in 
the  surviving  partner,  but  it  casts  upon  him  the  duty  to  get  in  the 
debts  and  settle  the  affairs  of  the  partnership.  The  jus  accrescendi 
exists  for  this  purpose.  Story  on  Part.  346  ;  Murray  v.  Mumford, 
6  Cowcn,  441 ;  Peters  v.  Davis,  7  Mass.  257;  Jarvis  v.  Hyer,  4  Dev. 
367.  The  right  to  assign  is  incident  to  the  possession  of  the  legal 
title,  and  a  defendant  in  an  action  by  the  assignee  can  not  question 
the  consideration  upon  which  it  was  made.  Story  on  Part,  sec. 
115;  Peterson  v.  Chemical  Bank,  32  N.  Y.  21.  The  code  has  not 
changed  the  rule  upon  this  subject.  The  survivor  of  a  firm  is  the  real 
party  in  interest  to  a  demand  owned  by  or  due  to  the  firm.  The 
debtor  can  not,  when  sued  by  the  survivor,  object  that  the  repre- 
sentatives of  the  deceased  partner  are  not  made  parties  with  the 
survivor. 

The  mode  of  commencing  actions  by  and  against  corporations 
and  the  manner  of  stating  the  name  of  the  party,  where  it  is  a 
corporation,  came  up  for  consideration  in  the  District  Court,  in 
Jackson  county,  at  its  September  term,  a.  d.  1858,  Peck.  Whit- 
man, and  Xasli,  JJ.  The  court  held,  that  where  a  corporation  was 
organized  under  a  special  act  of  the  General  Assembly,  the  conrt 
COald  take  notice  of  t  lie  charter  ami  of  the  fact  that  it  was  a  cor- 
poration. Brown  v.  The  State,  11  Ohio,  276, 280,  But  in  the  case 
of  a  corporation  organized  under  a  genera]  law.  the  court  will  take 
notice  of  the  law.  not  of  the  existence  of  the  corporation.  In  this 
the  law  doee  not  create  the  corporation,  it  merely  authorizes 
the  stockholders  under  certain  circumstances  to  organize  a  corpora- 


348  FORMS    OP    PETITIONS. 


tion,  and  this  organization  is  a  private,  not  a  public  act;  hence,  the 
court  can  not  take  any  judicial  notice  of  such  a  corporation;  it 
must,  therefore,  appear  on  the  pleadings  by  proper  averments, 
that  the  name  used  representsa  corporation  duly  organized  accord- 
ing to  law. 

Where,  however,  a  suit  was  commenced  by  Beasby  v.  The  Iron 
Valley  Furnace  Co.,  and  the  defendant  by  this  name  appeared  by 
counsel,  and  filed  a  demurrer  to  the  petition,  which  demurrer  was 
heard  and  overruled,  and  judgment  thereupon  rendered  against 
such  company,  the  court  held  that  the  defendant  must  be  presumed 
to  be  a  corporation,  otherwise  it  could  not  appear  by  such  name ; 
and  that  the  filing  of  the  demurrer  was  a  waiver  of  the  defect  in 
the  petition,  in  not  stating  that  the  defendant  was  a  corporation, 
duly  organized  under  the  laws  of  this  State.  By  filing  the  demurrer, 
the  defendant  admits  his  capacity  to  be  sued  by  that  name.  If, 
however,  the  defendant  is  not  a  corporation,  but  a  mere  partner- 
ship, then  the  error  must  be  reached  in  another  way,  by  a  petition 
in  error,  which  alleges  for  error  in  fact,  that  the  defendant  was  not 
a  corporation,  but  the  name  of  a  mere  partnership ;  the  truth  of 
this  fact  might  be  denied,  and  thus  present  an  issue  in  fact,  or 
demurred  to  as  true,  and  thus  present  an  issue  of  law. 

The  practice  in  New  York  is  laid  down  in  the  case  of  the  Phenix 
Bank  v.  Donnell,  40  N.  Y.  410.  The  court  there  hold  that  the 
averment  ought  to  be  made,  but  that  if  it  appears  upon  the  face  of 
the  complaint  that  a  plaintiff  suing  as  a  corporation  is  not  such  in 
fact,  a  demurrer  is  the  proper  remedy  of  the  defendant  under  sec- 
tion 144.  If  the  complaint  does  not  show  that  the  plaintiff  is  not  a 
corporation  on  its  face,  the  objection  that  it  is  not  such  must  be 
taken  by  answer  under  section  147.  I  do  not  consider  this  rule  the 
correct  one  so  far  as  it  applies  to  corporations,  oi'ganized  under  our 
general  corporation  law.  It  was  probably  right  in  that  case,  as 
the  bank  was  incorporated  under  a  special  law. 

Under  these  rulings  the  form  for  stating  the  name  of  the  parties 
in  such  a  case  will  be  as  follows : 

A  B,  plaintiff,  ") 

vs.  y  Petition. 

The  Young  America  Furnace  Co.,  defendant.  J 

A  B,  plaintiff,  complains  of  The  Young  America  Furnace  Co.,  a 
corporation  duly  organized  under  the  laws  of  this  State,  defend- 
ant, for  that,  etc. 
Or  this : 


FORMS   OF   PETITIONS.  349 


The  Iron  Valley  Furnace  Co.,  plaintiff,") 

vs.  >  Petition. 

The  Diamond  Furnace  Co.,  defendant.  ) 

The  said  Iron  "Valley  Furnace  Co.,  a  corporation  duly  organized 
under  the  laws  of  this  State,  plaintiff,  complains  of  the  said  Diamond 
Furnace  Co.,  a  corporation  duly  organized  under  the  laws  of  this 
State,  defendant,  for  that,  etc. 

Where  the  corporation  is  a  foreign  corporation,  the  court  can 
not  take  notice  of  its  charter  and  legal  existence;  hence,  there 
ought  also  in  such  a  case  to  be  a  somewhat  similar  averment.  The 
form  might  be  like  the  following : 

The  ^Northwestern  Bank  of  Virginia,  plaintiff,  ") 

vs.  y  Petition. 

C  D,  defendant.  j 

The  ^Northwestern  Bank  of  Virginia,  a  corporation  duly  organ- 
ized under  the  laws  of  the  State  of  Virginia,  plaintiff,  complains 
of  C  D,  defendant,  for  that,  etc. 

In  stating  the  name  in  the  heading  of  the  case,  it  is  sufficient  to 
state  simply  the  name  of  the  corporation,  and  make  the  averment 
of  its  being  a  corporation  in  the  petition,  as  in  the  forms  already 
given.  It  would  hardly  seem  necessary  to  make  the  same  state- 
ment twice.     The  form  in  that  case  would  be  like  the  following : 

The  Diamond  Furnace  Co.,  plaintiff,      ") 

VS.  V  Petition. 

The  Scioto  Polling  Mill  Co.,  defendant.  ) 

The  Diamond  Furnace  Co.,  a  corporation  duly  organized  under 
the  laws  of  this  State,  plaintiff,  complains  of  the  Scioto  Polling 
Mill  Co.,  a  corporation  duly  organized  under  the  laws  of  this  state, 
defendant,  for  that,  etc. 

Partnership,  when  sued  by  that  Name. 
The  statute  of  February  27,  1846  (2  S.  &  C.  1138),  authorizes 
actions  by  and  against  partnerships  in  the  partnership  name. 
This  statute  came  under  consideration  of  the  District  Court,  in 
Gallia  county,  at  its  September  term,  a.  r>.  1S58,  in  the  case  of  A. 
Frosi  &  Co.  v.  Thornley.  The  action  was  brought  in  the  name  of 
A.  Frosi  &  Co.,  withoul  any  other  or  further  designation;  the  de- 
fendant answered  thai  A.  Frosi  A:  Co.  was  a  partnership  doing 
business  in  the  State  oi  New  STorkj  to  this  answer,  a  demurrer  was 
interposed  ;  the  courl  below  overruled  the  demurrer,  and  rendered 
judgmenl  thereon  againsl  the  plaintiff.  This  petition  in  error  was 
prosecuted  to  reverse  the  judgment. 


350  FORMS    OF    PETITIONS. 


The  court — Nash,  Peck,  and  Whitman,  JJ. — held  that  the  stat- 
ute only  authorized  such  companies  or  partnerships,  to  sue  or  to 
be  sued  in  the  partnership  name,  as  were  formed  for  the  purpose 
of  carrying  on  some  trade  or  business  in  Ohio,  or  for  the  purpose 
of  holding  property  in  this  State.  The  company  or  partnership 
must  be  an  ( >hio  company  or  partnership,  otherwise  it  could  neither 
sue  nor  he  sued  in  its  partnership  name;  hence,  a  partnership 
loeated  in  New  York  could  not  bring  a  suit  in  Ohio  by  its  part- 
nership name;  the  court  below,  therefore,  did  not  err  in  the 
judgment  it  rendered. 

In  the  case  of  Iron  Valley  Furnace  Co.  v.  Bunn,  Pickerel  &  Co., 
decided  by  the  same  judges,  in  the  Jackson  District  Court,  it  was 
held,  that  where  an  action  is  brought  in  a  partnership  name,  or  a 
firm  is  sued  in  the  firm  name,  the  petition  must  contain  the  state- 
ment that  the  same  is  a  partnership  formed  for  the  purpose  of 
doing  business  or  holding  property  in  Ohio ;  and  that  without  this 
averment  a  demurrer  will  lie  for  a  defect  of  parties.  As  the  stat- 
ute allows  actions  to  be  thus  prosecuted  only  in  a  particular  class 
of  cases,  the  party  must  by  proper  averments  show  that  he  comes 
within  the  provisions  of  the  statute,  and  he  can  only  do  this  by 
averring  that  the  company  is  a  company  or  partnership  doing 
business  in  Ohio.  The  following  form  will  serve  as  a  guide  in  such 
cases : 

A  B  &  Co.,  plaintiff,    ~\ 

vs.  >  Petition. 

C  J)  &  Co.,  defendant.  ) 

A  B  &  Co.,  a  company  of  persons,  formed  for  the  purpose  of 
carrying  on  trade  (or  business)  within  the  State  of  Ohio,  and  not 
incorporated  as  such,  plaintiffs,  complain  of  C  D  &  Co.,  a  com- 
pany of  persons  formed  for  the  purpose  of  holding  property  within 
the  State  of  Ohio,  and  not  incorporated  as  such,  defendants,  for 
that,  etc. 

This  form  can  be  easily  modified  so  as  to  meet  any  peculiarity 
in  the  name  of  the  company  ;  as,  TJie  Iron  Valley  Company,  a  com- 
pany of  persons  formed  for  the  purpose  of  carrying  on  business  within 
the  State  of  Ohio,  and  not  incorporated  as  such,  plaintiff,  etc. 
COMMON  COUNTS. 

Note. — We  here  insert  the  counts  heretofore  known  as  the 
common  counts,  substantially  as  they  were  stated  in  an  action  of 
debt.  The  count  avers  an  indebtedness,  for  what  that  indebted- 
ness was  incurred,  that  it  was  due,  and  that  it  had  not  been  paid. 
Without  authority,  these  founts  would  seem  as  applicable  under 


FORMS   OP   PETITIONS.  351 


the  code  as  under  the  old  system  of  pleading.  They  contain  all 
the  facts  which  show  the  plaintiff's  right  to  recover.  In  the  third 
subdivision  of  the  seventh  district,  it  was  constantly  held  that 
those  counts  were  sufficient,  where  they  correctly  described  the 
state  of  facts.  It  is  believed  that  the  same  ruling  prevailed  in  the 
other  portions  of  the  district.  In  New  York  one  or  two  judges  at 
first  doubted  whether  this  form  of  declaring  was  sufficient.  The 
first  doubt  may  have  been  started  in  Eno  v.  Woodworth,  I  Comst. 
240.  by  Judge  Bronson,  and  it  was  followed  by  some  other  judges. 
Blanc-hard  v.  Strait,  8  Pr.  83 ;  Wood  v.  Anthony,  9  Pr.  78.  But  in 
Glenny  v.  Hitchins  et  ah,  4  Pr.  98,  Sill,  J.,  had  held  such  a  count 
to  be  good,  and  that  no  promise  to  pay  need  be  stated  as  in  the 
old  forms  in  assumpsit.  The  count  in  that  case  may  have  been 
bad,  for  not  averring  that  the  debt  was  then  due  and  payable. 
This  question  was,  however,  finally  settled  in  New  York,  by  the 
Court  of  Appeals,  in  the  case  of  Allen  et  al.  v.  Patterson,  3  Selden, 
47G.  The  petition  in  that  case  was  in  these  words  :  "  The  plaintiff's 
complain  against  the  defendant  for  that  the  defendant  is  indebted 
to  the  plaintiffs  in  the  sum  of  8371.01,  for  goods  sold  and  delivered 
by  the  plaintiff's  to  the  defendant,  at  his  request,  on  the  first  day 
of  May,  1849,  at  the  city  of  Buffalo,  in  said  county.  And  the 
plaintiffs  say  that  the  items  in  their  account  exceed  twenty  in 
number.  And  the  plaintiffs  say  that  there  is  now  due  them  from 
the  defendant  the  sum  of  8371.01,  for  which  sum  the  plaintiffs  de- 
mand judgment  against  the  defendant,  with  interest  from  the 
20th  dayof  October,  1849,  besides  costs."  To  this  complaint 
a  demurrer  was  interposed  for  the  following  reasons  : 

"  The  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action  in  this : 

"  1.  There  is  no  allegation  in  the  complaint  of  a  contract  by  the 
defendant. 

"2.  The  plaintiffs  have  alleged  no  breach  of  any  contract  by  the 
defendant. 

"3.  There  are  no  facts  stated  in  the  complaint  showing  that  the 
defendant,  at  the  time  of  the  commencement  of  said  action,  was 
indt  bted  to  said  plaintiffs. 

"4.  There  are  no  facts  Btated  in  the  complaint  showing  that  any- 
thing was  due  and  payable  from  the  defendant  to  the  plaintiffs  at 
the  commencemenl  of  this  action." 

Jewett,  .1..  says  :  "  The  code  requires  that  a  complain!  shall  con- 
tain ;,  plain  and  concise  statement  of  the  facts  constituting  the 
cause  of  action.     Every  fact  which  the  plaintiff  must  prove  to  en- 


352  FORMS   OP   PETITIONS. 


able  him  to  maintain  his  suit,  and  which  the  defendant  has  a  right 
to  controvert  in  his  answer,  must  he  distinctly  averred  or  stated. 
This  rule  of  pleading,  in  an  action  for  a  legal  remedy,  is  the  same 
as  formerly  in  this,  that  facts  and  not  the  evidence  of  facts  must  he 
pleaded.  1  Chitty  PI.  215 ;  Reed  v.  Brookman,  3  Term,  159,  per 
Butler,  J. ;  Eno  v.  "\Yoodworth,  4  Comst.  219. 

"  The  plaintiffs,  in  their  complaint  in  this  action,  state  that  the 
defendant  is  indebted  to  the  plaintiffs  in  the  sum  of  $371.01  for 
goods  sold  and  delivered  by  the  plaintiffs  to  the  defendant  at  his 
request,  on  the  1st  day  of  May,  1849,  etc.,  and  that  there  is  now 
due  them  from  the  defendant  the  sum  of  $371.01,  for  which  they 
demand  judgment,  etc.  In  substance,  stating  that  on  the  1st  day 
of  May,  etc.,  the  plaintiffs,  at  the  request  of  the  defendant,  sold 
and  delivered  to  him  goods,  for  which  he  then  owed  or  was  bound 
to  pay  the  plaintiffs  the  sum  of  $371.01,  and  further  averring  that 
there  was  then  due  them  from  the  defendant  the  sum  of  $371.01 
(that  is,  that  the  time  when  said  money  for  said  goods  was  prom- 
ised to  be  paid  had  expired),  for  which  sum  the  plaintiffs  demand 
judgment,  etc.  The  question  is,  then,  are  there  facts  enough 
stated  to  constitute  a  cause  of  action  ?     I  think  there  are. 

"  The  words  that  the  defendant  is  indebted  to  the  plaintiffs  in 
the  sum  of  $371.01,  for  goods  sold  and  delivered  by  them  to  him  at 
his  request,  and  that  there  was  then  due  the  plaintiffs  from  the  de- 
fendant that  sum,  clearly  imply  that  a  contract  had  been  made  be- 
tween the  plaintiffs  and  defendant,  by  which  the  former  sold  and 
delivered  the  latter  goods  at  his  request,  for  which  he  promised  to 
pay  the  plaintiffs  the  sum  of  $371.01 ;  and  that  the  period  in  which 
the  same  was  promised  to  be  paid  had  expired.  It  contains  "every 
statement  of  fact  necessary  to  constitute  a  good  indebitatus  count 
in  debt,  according  to  the  mode  of  pleading  before  the  code.  2 
Chitty  PI.  142 ;  Emery  v.  Fell,  2  Term,  28 ;  1  Chitty  PL  345." 

The  judge  then  proeeeds  to  show  that  the  word  due  imports  a 
debt  due  and  payable,  and  not  simply  the  fact  of  a  mere  indebted- 
ness. The  judgment  below  for  the  plaintiffs  was  therefore  af- 
firmed. 

This  case  distinctly  affirms  that  what  was,  under  the  old  prac- 
tice, a  good  indebitatus  count  in  debt,  is  now  a  good  count  under 
the  code.  There  never  was  any  ground  to  doubt  it.  Such  a  count 
states  all  the  facts  of  the  case  ;  that  the  plaintiffs  sold  and  delivered 
goods  to  the  defendant  at  his  request,  and  the  value  of  them.  This 
is  a  contract.     The  law  implies  a  promise  to  pay  from  the  fact 


FORMS   OF    PETITIONS.  353 


stated,  and  legal  conclusions  are  never  to  be  stated.  Swan's  Stat. 
640,  see.  129.     This  is  all  there  can  be  in  a  sale  of  goods. 

It  will  be  seen  that  the  following  forms  obviate  the  only  real  dif- 
ficulty in  such  cases,  by  the  averment  that  the  sum  stated  was  then 
due  and  payable.  The  time  stated  should  be  the  time  when  the 
account  or  debt  became  payable,  and  the  averment  that  the  sum 
is  then  due  and  payable  will  correspond ;  though,  as  time  is  not 
material,  an  error  in  this  particular  can  probably  make  no  differ- 
ence, provided  the  date  from  which  interest  is  to  be  run  is  correctly 
stated.  Vide  Lyon  v.  Clark,  4  Selden,  148.  An  allegation  that 
plaintiff  paid  certain  judgments  on  a  named  day  does  not  confine 
the  plaintiff  to  that  day.  The  time,  as  a  matter  of  pleading,  was 
immaterial.  The  plaintiff  might  allege  any  time  after  the  judg- 
ments had  been  obtained  against  him,  and  give  in  evidence  the 
true  time.  Per  Willard,  J.,  lb.  157  ;  Moffet  v.  Sacket,  18  N.  Y.  522 ; 
Farran  v.  Sherwood,  17  K  Y.  227. 

This  question  came  up  again  in  the  case  of  Farran  v.  Sherwood, 
17  1ST.  Y.  227.  Strong,  J.,  in  delivering  the  opinion  of  the  court, 
says  :  ':  The  case  is  therefore  within  the  well-settled  rule  that  when 
there  is  a  special  agreement,  and  the  plaintiff  has  performed  on  his 
part,  the  law  raises  a  duty  on  the  part  of  the  defendant  to  pay  the 
price  agreed  upon,  and  the  plaintiff  may  count  either  on  the  im- 
plied assumpsit  or  on  the  express  agreement.  A  new  cause  of  ac- 
tion upon  such  performance  arises  from  this  legal  duty,  in  like 
manner  as  if  the  act  done  had  been  done  upon  a  general  request, 
without  an  express  agreement.  Laws  PI.  5  ;  Jewell  v.  Schroeppel, 
4  Cowen,  564  ;  Feeter  v.  Heath,  11  Wend.  484;  Mead  v.  Degolyer, 
16  lb.  637,  638;  Clark  v.  Fairchild,  22  lb.  576.  This  rule  is  not 
affected  by  the  code.  The  plaintiff  might,  as  he  has  done,  rest  his 
action  on  the  legal  duty;  and  his  complaint  is  adapted  to  and 
contains  every  necessary  element  of  that  cause  of  action.  It  is  not 
accessary  to  state  in  terms  a  promise  to  pay.  It  was  sufficient  to 
state  facta  showing  the  duty  from  which  the  law  implies  a  promise  ; 
that  complies  with  the  requirement  that  facts  must  be  stated  con- 
stituting the   cause  of  action.     Allen  v.  Patterson,  3  Selden,  476." 

Tin-  same  form  of  declaring  was  resorted  to  in  the  case  of  Moffet 
V.  Sacket.  IS  X.  V.  Wii.  Stroii--.  .! .  :  "  The  plaintiff  claims  in  his 
complainl  that  the  defendanl  is  justly  indebted  to  him  in  the  sum 
of  1197.35,  together  with  interest  thereon  on  an  account  for  goods, 
wares,  ami  merchandise  sold  ami  delivered  to  the  defendanl  by  the 
plaintiff,  and  tor  work  aid  labor  done  and  performed,  and  for  cash 
vol.  i— 23 


354  FORMS   OP   PETITIONS. 


paid,  laid  out,  and  expended  by  the  plaintiff  for  and  at  the  request 

of  the  defendant That  the  requisition  in  section  142  of 

the  code,  that  the  complaint  must  contain  a  plain  and  concise 
statement  of  the  facts  constituting  a  cause  of  action  is  satisfied  by 
the  general  allegation  of  indebtedness  for  goods  sold  and  delivered, 
Avas  decided  by  this  court  in  Allen  v.  Patterson,  3  Seldcn,  476." 

The  same  question  was  made  again  in  Fells  v.  Festvali,  2  Keys, 
152.  The  action  was  upon  a  quantum  meruit,  for  services  alleged 
to  have  been  rendered  by  plaintiff  for  defendant.  Davis,  J. :  "  If 
the  plaintiff  was  entitled  to  recover  at  all,  it  was  on  the  ground 
that  the  services  had  actually  been  rendered ;  and  after  the  com- 
plete performance  of  an  express  contract,  there  is  no  reason  why  a 
recovery  may  not  be  had  under  this  form  of  pleading.  The  only 
effect  in  such  a  case  of  proof  of  an  express  contract  fixing  the 
price  is,  that  the  stipulated  price  becomes  the  quantum  meruit  in 
the  case." 

The  question  was  again  persisted  in  in  the  case  of  Hosley  v.  Black, 
28  N\  Y.  438,  443.  Balcom,  J.:  "  The  complaint  contains  seven  dis- 
tinct counts,  three  of  which  are  similar  in  substance  to  the  count 
indebitatus  assumpsit  for  work  and  labor  used  prior  to  the  code  of 
procedure.  That  count  always  was  sufficient  to  authorize  a  re- 
covery for  work  and  labor  performed  under  a  contract  not  under 
seal,  unless  the  party  performing  the  work  and  labor  had  failed  to 
fulfill  the  contract.  4  Wend.  285  ;  11  lb.  479  ;  22  lb.  576  ;  1  Cow.  Tr., 
2ed.  124 ;  2  lb.  635, 1128.  This  court  held,  in  Farran  v.  Sherwood,  17 
N.  Y.  227,  that  the  code  had  not  changed  the  former  rule  of  plead- 
ing ;  that  a  party,  who  has  wholly  performed  a  special  contract  on 
his  part,  may  count  upon  the  implied  assumpsit  of  the  other  party 
to  pay  the  stipulated  price,  and  is  not  bound  to  declare  specially 
upon  the  agreement.  The .  same  rule  was  held  in  the  following 
cases :  Allen  v.  Patterson,  3  Selden,  476 ;  Ketteltas  v.  Myers,  19 
K  Y.  231 ;  Moffit  v.  Sacket,  18  N.  Y.  522." 

In  the  case  of  Cope  o.  Wheeler,  41  N.  Y.  303,  James,  J.,  says : 
"  The  form  of  the  action  was  also  proper.  Where  money  has  been 
received,  which  in  equity  belongs  to  another,  an  action  for  money 
had  and  received  will  lie  for  its  recovery;  and  now,  under  the 
code,  5,ny  defense,  legal  or  equitable,  may  be  interposed  by  the  de- 
fendant." 

The  same  doctrine  is  maintained  in  Meagher  v.  Morgan,  8  Kansas, 
372.  Safford,  J. :  "  The  principal  question  presented  by  therecord  in 
this  case  is,  whether  or  no  the  common  counts  for  goods  sold  and 
delivered,  work  and  labor  done,  money  had  and  received,  etc., 


FORMS   OP   PETITIONS.  355 


when  set  out  in  a  pleading  under  the  code,  contain  each  in  itself 
facts  sufficient  to  constitute  a  cause  of  action,  or  grounds  of  defense. 
We  are  of  the  opinion  that  this  manner  of  pleading  is  sufficient 
under  the  code,  as  it  was  under  the  practice  before  the  code.' 

These  additional  authorities  ought  to  settle  this  question  in 
future.  It  has  been  the  practice  in  Ohio  so  to  declare,  and  no  one 
has  made  a  question  of  it  in  the  Supreme  Court.  There  should 
have  been  no  doubt  about  it  in  any  legal  mind.  The  code  adopts 
Chitty's  definition  of  a  declaration  as  that  of  a  petition.  Any 
petition,  therefore,  which  would  have  been  good  as  a  declaration, 
is  now  good  as  a  petition ;  it  states  the  facts,  which  constitute  a 
cause  of  action. now  as  much  as  it  did  before. 

The  common  counts  are  of  great  practical  importance.  It  is  im- 
possible and  unnecessary  in  all  cases  to  set  out  in  detail  a  special 
agreement,  when  the  agreement  has  been  executed,  and  there  is 
nothing  left  to  be  done  but  to  pay  a  certain  sum  of  money.  In 
the  sale  of  real  estate,  where  the  land  has  been  conveyed,  or  the 
deed  tendered,  what  earthly  use  in  setting  out  a  long  special  con- 
tract, when  all  that  is  left  is  a  simple  liability  to  pay  the  purchase 
money  ;  and  in  most  cases  of  special  agreements,  the  contract  has 
been  varied  in  some  minute  particular,  and  in  that  case,  no  action 
can  be  sustained  on  the  special  agreement  ;  in  that  case  the  com- 
mon count  for  land  sold  and  conveyed,  goods  sold  and  delivered, 
money  paid,  etc.,  is  the  only  form  of  stating  the  facts  known  to  the 
law.  The  common  counts  were  originally  adopted  to  meet  the  in- 
conveniences and  dangers  of  declaring  on  a  special  agreement, 
because  the  least  failure  in  its  execution  or  departure  from  it  de- 
feated  the  action  and  turned  the  party  out  of  court.  The  rule  is 
that  where  work  is  done,  or  property  sold  under  a  special  agree- 
ment, a  common  count  is  allowable,  if  the  contract  has  been  ex- 
ecuted, or  if  there  has  been  any  departure  from  the  terms  of  it  in 
its  execution.  This  applies  to  all  sales,  whether  of  personal  or  real 
be,  in  order  to  enable  the  pleader  to  ascertain  when  they  are 
to  be  used  and  when  not.  The  code  has  not  changed  the  law  in 
this  reaped  ;  what  was  heretofore  a  good  declaration,  is  now  a 
good  petition.  The  pleading  before  the  code  set  up  the  facts  con- 
tinuing a  cause  of  action,  or  a  ground  of  defense;  and  the  code 
now  requires  the  same  thing.  Endeed,  in  many  eases  no  other  form 
is  known  in  law.     Where  there  has  been  no  special  agreement,  uo 

price  agreed  on.  no  time  agreed  on  — nothing  done,  but  that  one 
man  has  done  work  lor  a  not  her,  or  sold  and  delivered  goods  to 
him,  the  law  implies  a  promise  to  pay  what  the  work  or  the  goods 


356  FORMS   OF    PETITIONS. 


are  reasonably  worth.  If  the  pleader  goes  one  step  beyond  a 
statement  that  the  party  is  indebted  to  him  for  goods  sold  and  de- 
livered, or  work  done  at  defendant's  request,  he  must  go  into  a 
statement  of  the  evidence.  The  money  counts  are  equally  impor- 
tant and  necessary.  No  substitute  can  be  found  for  the  count  for 
money  had  and  received,  unless  the  petition  sets  out  the  evidence, 
by  which  the  plaintiff  proposes  to  show  that  the  defendant  has 
got  money  which  belongs  to  the  plaintiff.  These  counts,  too,  are 
brief,  and  have  served  the  ends  of  justice  for  some  centuries. 

There  is  one  class  of  common  counts  which  relate  to  real  estate  : 
1.  To  a  sale  of  it ;  2.  To  the  use  of  it.  All  the  common  counts 
relating  to  real  estate  come  under  one  or  the  other  of  these  classes. 
In  case  of  a  sale,  if  the  agreement  is  under  seal  with  a  covenant 
to  pay,  the  action  must  be  on  the  agreement.  The  reason  is,  that 
a  sealed  instrument  is  a  higher  security,  and  extinguishes  all  parol 
agreements ;  hence,  no  action  can  be  brought  on  common  counts, 
where  the  law  implies  the  liability.  These  counts  for  sale  of  real 
estate  seldom  occur  in  use,  as  such  contracts  are  reduced  to  writ- 
ing, and  notes  are  executed  for  the  purchase  money  contemporary 
with  the  execution  of  the  conveyance.  But  there  are  cases,  where 
the  conveyance  has  been  made,  and  the  purchase  money  not  paid, 
and  no  note  given  for  the  purchase  money.  In  such  a  case,  these 
counts  are  a  necessity,  as  no  other  form  will  meet  the  position  such 
a  state  of  facts  has  assumed. 

The  count  for  use  and  occupation  is  in  more  common  use.  This 
lies,  when  one  man  has  occupied  and  enjoyed  the  use  of  the  real 
estate  of  another,  under  such  circumstances  as  show  that  it  is  done 
with  the  consent  or  acquiescence  of  the  owner.  In  such  a  case, 
the  law  implies  a  promise  to  pay  what  the  premises  are  reasonably 
worth. 

It  is  unnecessary  to  state  where  the  lands  lie,  or  any  particular 
of  the  demise.  If  there  has  been  a  lease  and  the  premises  occu- 
pied under  it,  and  nothing  remain  but  the  payment  of  the  rent,  an 
action  for  use  and  occupation  will  lie.  6  East,  248 ;  5  Taunt.  25 ; 
1  Saunders,  241,  n.  5.  This  count  is  sufficient,  though  the  defend- 
ant may  not  himself  have  occupied  the  premises.  8  Term,  327;  16 
East,  33 ;  2  Starkie,  527.  This  is,  of  course,  where  the  defendant 
has  occupied  in  law  by  some  one  in  his  place.  But,  if  the  plaintiff 
has  recognized  another  person  as  his  tenant,  he  can  not  afterward 
charge  the  defendant.  2  B.  &  A.  119  ;  2  Starkie,  235  ;  4  Taunt.  45  ; 
6  Bing.  206.  It  may  be  brought  by  the  assignee  of  the  reversion 
before  attornment.     16  East,  99;  2  H.  Bl.  319.     Where  there  is  an 


FORMS   OF   PETITIONS.  357 


agreement  under  seal  for  a  lease  not  containing  any  covenant  for 
the  payment  of  rent,  this  action  may  be  maintained.  Elliot  v. 
Eogers,  4  Esp.  59.  Lord  Kenyon,  Ch.  J. :  "  If  there  was  a  demise 
by  deed,  the  plaintiff  could  certainly  not  maintain  an  action  in  the 
present  form ;  but  this  is  not  a  lease  of  the  premises,  it  is  only  an 
agreement  for  a  lease.  The  defendant  does  not  hold  under  the 
the  deed ;  and  the  action  is,  therefore,  maintainable."  This  action 
for  use  and  occupation  seems  to  be  the  only  remedy  where  there  is 
specific  rent  agreed  upon.  5  B.  &  A.  322 ;  2  Saund.  400 ;  6  B.  & 
C.  251 ;  3  M.  &  S.  380.  It  is  not  necessary  nor  advisable  to  state 
the  local  situation  ;  it  would  be  fatal  if  misstated.  3  Camp.  236 ; 
3  Taunt.  128  ;  3  M.  &  S.  380  ;  1  Taunt.  570  ;  13  East,  9.  In  the  case 
of  Be  Young  v.  Buchanan,  10  Grill.  &  Johns.  149,  156,  Spence,  J., 
says:  "The  action  of  assumpsit,  for  use  and  occupation,  can  be 
sustained  where  it  is  based  upon  a  contract,  either  express  or  im- 
plied ;  and  unless  it  is  thus  founded,  it  can  not  be  maintained. 

Birch  v.  Wright,  1  Term,  387 It  seems,  at  this  day, 

to  be  well-settled  law  that  when  a  tenant  for  a  term  of  years, 
or  from  year  to  year,  holds  over  after  the  expiration  of  the  term, 
he  impliedly  holds  subject  to  all  the  covenants  in  the  lease,  which 
are  applicable  to  his  new  situation.  Digby  v.  Atkinson,  4  Camp. 
275  ;  Biggs  v.  Bell,  5  Term,  471 ;  13  Johns.  297." 

In  order  to  maintain  an  action  for  use  and  occupation,  the  rela- 
tion of  landlord  and  tenant  must  subsist :  there  must  be  a  tenancy ; 
if  the  party  occupies  under  a  claim  of  title  or  adversely  to  the 
plaintiff,  the  action  can  not  be  maintained.  Rickey  v.  Hinde,  6 
Ohio,  371,  378.  If  the  occupant  enter  and  hold  without  permission 
or  right  he  is  a  trespasser,  and  the  owner  can  not  waive  the  tres- 
pass and  make  him  his  tenant  without  his  consent.  Peters  v. 
Elkins,  14  Ohio,  344,  346.  So  it  will  not  lie  where  the  occupant 
goes  in  as  purchaser,  and  then  refuses  to  pay  for  the  land.  Butler 
v.  Cowles,  4  Ohio,  205,  212.  Where,  however,  one  rents  real  prop- 
erty and  before  the  end  of  the  term  the  lease  is  given  up,  the  owner 
is  entitled  to  recover  for  the  use  and  occupation  in  this  form  of 
action.  Fitch  v.  Sargeant,  1  Ohio,  352.  Vide  also  Tennant  v. 
MeBride.  3  Ohio.  264  ;  City  of  Cincinnati  v.  Walls,  1  Ohio  St.  222. 
So  where  one  lias  Leased  land  to  another  for  a  rent  to  be  paid  in  a 
portion  of  the  crop  and  a  certain  quantity  of  grain,  and  the  lessee 
fails  to  deliver  these  articles,  the  lessor  may  recover,  in  an  action 
Imp  a-,-  and  occupation,  tin-  market  value  of  crop  and  grain  agreed 
to  be  given.     Butler  r.  Baker,  .">  Ohio  St.  584. 

An  action  for  use  and  occupation  will  not  lie,  where  the  defond- 


358  FORMS    OF    PETITIONS. 


nut's  possession  was  tortious;  no  contract  existing-  in  such  case. 
Henwood  v.  Cheeseman,  3  S.  &  E.  500;  Eyan  v.  .Marsh,  2  N.  &  ML 
156  j  Stocketl  r.  Watkins,  2  Gill.  &  Johns.  32G ;  Wiggin  u.  Wiggin, 
6  N.  II.  298;  Poindexter  v.  Cherry,  4  Yerg.  305;  Codman  t\  Jenk- 
ens,  14  Mass.  95;  Boston  v.  Binney,  11  Pick.  1 ;  Smith  v.  Stewart, 
('.  Johns.  40;  Vandarkeuvel  v.  Storrs,  3  Conn.  203;  Bell  v.  Ellis,  1 
Stew.  &  Port.  294;  Little  v.  Pearson,  7  Pick.  301 ;  Jones  v.  Tipton. 
2  Dana,  295  ;  Clough  u.  Horsford,  6  K  H.  234;  Bancroft  v.  Wardell, 
1 3  Johns.  489  ;  Wharton  v.  Fitzgerald,  3  Dallas,  503.  The  plaintiff 
must  prove  a  contract,  either  express  or  implied.  Sutton  v.  Mande- 
ville,  1  Mnnf.  407 ;  Logan  v.  Lewis,  7  J.  J.  Marsh.  6 ;  Shattuek  v. 
Eansom,  2  Aik.  252 ;  Gunn  v.  Scovil,  4  Day,  228 ;  Osgood  v.  Dewey, 
13  Johns.  240 ;  Aheel  v.  Eadcliff,  13  Johns.  297 ;  Patt  v.  Lesher, 
1  Yeates,  576 ;  Andrews  v.  Andrews,  2  Green,  142 ;  Fitchburgh 
Cotton  Manf.  Co.  v.  Melven,  15  Mass.  270 ;  McGrennagle  v.  Thorn- 
ton, 10  S.  &  E.  251 ;  Grant  v.  Gill,  2  Whart.  42;  Hill  v.  Boutel,  2 
N.  H.  502  ;  Moore  v.  Beasley,  3  Ohio,  294 ;  Fronty  v.  Wood,  2  Hill, 
367  ;  Dorrill  v.  Stephens,  4  McCord,  59 ;  Little  v.  Martin,  3  Wend. 
219.  Proof  of  a  demise  or  special  agreement  (unless  by  deed)  will 
not  prevent  a  recovery  on  a  count  for  use  and  occupation.  Per- 
rine  v.  Hankinson,  6  Halst.  181 ;  Mayo  v.  Fletcher,  14  Pick.  525. 

These  cases,  if  consulted,  will  show  the  application  of  the  rule 
that  the  relation  of  landlord  and  tenant  must  exist,  expressly  or 
impliedly,  between  the  parties  to  justify  an  action  of  this  kind. 

II.    GOODS   SOLD    AND   DELIVERED. 

In  general,  to  enable  the  plaintiff  to  recover  on  a  count  for  goods 
sold  and  delivered,  it  must  appear  that  the  goods  were  sold  for 
money,  and  that  they  have  been  actually  or  virtually  delivered  by 
the  plaintiff  to  the  defendant.  Edmunds  v.  Wiggin,  11  Shepley, 
505  ;  Merrill  v.  Parker,  11  Shepley,  89 ;  Kingman  v.  Hotaling,  25 
Wend.  423 ;  Eicks  v.  Dillahunty,  8  Port.  133.  Delivering  goods  to 
a  carrier  for  the  use  of  a  third  person,  is  not  such  a  delivery  to  the 
third  person  as  will  support  an  action  for  goods  sold  and  delivered. 
Hayne  v.  Porter,  3  Hill,  341. 

Where  goods  are  sold  on  time  to  be  paid  for  by  note  on  delivery 
payable  on  time,  an  action  for  goods  sold  and  delivered  will  not 
lie,  until  the  time  given  has  expired.  If  the  note  is  not  given,  an 
action  on  the  contract  will  lie  for  failing  to  give  the  note  or  bill. 
Allen  v.  Ford,  19  Pick.  217;  Yale  v.  Coddington,  21  Wend.  175. 
Where  goods  are  sold  and  note  to  be  given  on  delivery  on  time, 
and  the  purchaser  refused  to  give  the  note,  he  may  be  sued  at  once 


FORMS    OF    PETITIONS.  359 

for  that  refusal  in  an  action  on  the  contract.  Pinehart  v.  Olivine, 
5  Watts  &  Serg.  157.  If  goods  are  to  be  paid  for  partly  in  money 
and  partly  in  goods  to  be  delivered,  the  vendor  must  declare  spe- 
cially ;  he  can  not  recover  under  the  common  counts.  Harris  v. 
Fowle,  1  H.  Bl.  287 ;  Tolver  v.  West,  Holt,  179 ;  S.  C,  3  Eng.  C.  L. 
66.  But  if  the  goods  be  delivered  to  the  plaintiff  in  part  perform- 
ance, he  may  recover  the  money  under  the  common  counts ;  as 
where  the  plaintiff  agreed  to  sell  a  horse  to  the  defendant,  to  be 
paid  for  partly  by  a  horse  of  the  defendant's  and  partly  by  money, 
and  the  horses  were  exchanged,  but  the  defendant  refused  to  pay 
the  money ;  it  was  held  that  the  plaintiff  might  recover  the  money 
under  a  count  for  goods  sold.  Sheldon  v.  Cox,  3  B.  &  C.  420  ;  S.  C, 
10  Eng.  C.  L.  137 ;  Forsyth  v.  Jervis,  1  Starkie,  437 ;  S.  C,  2  Eng. 
C.  L.  461 ;  Ingram  v.  Sherley,  lb.  185  ;  S.  C,  2  Eng.  C.  L.  348. 

If  the  time  of  credit  has  not  expired,  the  plaintiff  must  declare 
specially,  as  where  goods  were  to  be  paid  for  at  the  end  of  three 
months,  by  a  bill  at  two  months,  the  credit  will  not  elapse  until 
the  end  of  five  months:  and  if.  at  the  end  of  three  months,  the  pur- 
chaser does  not  give  a  bill,  the  vendor's  remedy  is  by  a  special  ac- 
tion ;  for  he  can  not  recover  on  the  common  courts  until  the  expi- 
ration of  the  five  months.  The  default  at  the  end  of  three  months 
is  a  failure  to  give  the  bill.  Mussen  v.  Price,  4  East,  147 ;  Miller 
v.  Show,  lb.  149 ;  Dutton  v.  Solomon,  3  B.  &  P.  582.  Where  goods 
were  to  be  paid  for  by  a  bill  at  two  months,  and  the  vendee  re- 
fused to  give  a  bill ;  it  was  held  that  the  vendor  could  not  main- 
tain an  action  for  goods  sold,  until  the  expiration  of  two  months. 
Dutton  v.  Solomon,  3  B.  &  P.  582;  Price  v.  Nixon,  5  Taunt,  338; 
S.  C,  1  Eng.  C.  L.  126.  So,  if  goods  were  sold  at  six  or  nine 
months,  and  they  are  not  paid  for  at  the  end  of  six  months,  the 
vendee  can  not  be  sued  for  them  until  the  end  of  nine  months. 
Price  v.  Nixon,  supra.  But  where  goods  were  sold  at  three  months' 
credit,  the  vendee  to  give  a  hill  at  three  months,  at  the  expiration 
of  that  period,  if  he  wished  for  tint  her  time,  a  bill  not  having  been 
given  at  the  end  of  three  months,  it  was  held  that  the  vendor 
might  immediately  sue  for  goods  sold  and  delivered.  Nickson  v. 
Jepson,  2  Starkie,  227  ;  S.  C.,  ::  Eng.  0.  L.  327.  Where  bills  are 
given  for  goods  and  dishonored,  the  vendor  may  maintain  an  ac 
lion  for  goods  sold  and  delivered,  provided  he  is  the  holder  of  the 
bills,  and  in  ,-i  condition  to  give  them  up;  hut  he  can  not  recover, 
if  it  appears  that  the  hills  are  in  the  hands  of  a  third  person. 
Bicklingt;.  Eardey,  7  Taunt.  312;  S.  C,  2  Eng.  C.  L.  118;  1 
Moore,  til  ;  Kearslake  v.  Morgan,  ">  Term,  513;  Burden  v.  Holton, 


3G0  FORMS    OF    PETITIONS. 


4  Bing.  455;  S.  C,  15  Eng.  C.  L.  37  ;  Goodwin  v.  Coates,  1  M.  & 
Rob.  221 ;  Cundy  v.  Mariott,  1  B.  &  Ad.  696 ;  S.  C.,  20  Eng.  C.  L. 
17  1;  5  Serg.  &  R.  19;  4  Cow.  2S2 ;  7  Mass.  329. 

When  one  takes  goods  by  virtue  of  a  sale  made  by  a  person 
who  has  no  authority  to  sell,  the  owner  may  affirm  the  contract 
and  support  a  count  for  goods  sold.  Gilmore  v.  Wilber,  12  Pick. 
L20.  Where  a  bailee  converts  goods  delivered  to  him  to  his  own 
use,  the  owner  may  waive  the  tort  and  recover  the  value  of  the 
goods  as  upon  a  sale.  Baker  v.  Cory,  15  Ohio,  9,  12.  The  doc- 
trine of  waiver  applies  only  to  those  things  which  may  pass  by 
delivery,  and  of  which  possession  is  evidence  of  ownership ;  and 
therefore  it  applies  not  to  injuries  to  the  possession  of  lands.  To 
waive  a  trespass  on  land  confers  no  right  on  the  wrong-doer. 
Peters  v.  Elkins,  14  Ohio,  344,  346.  Where  one  took  the  goods  of 
another  and  converted  them  to  his  own  use  without  the  owner's 
license,  it  was  held  that  the  plaintiff  might  waive  the  tort  and  the 
value  of  the  goods  be  recovered  on  a  count  for  goods  sold  and  de- 
livered. Hill  v.  Davis,  3  N.  H.  384;  Floyd  v.  Wiley,  1  Miss.  430 ; 
Lubeuena  v.  Hill,  lb.  643 ;  contra,  Jones  v.  Hoar,  5  Pick.  285. 

Where  the  plaintiff  sold  a  bill  of  merchandise  to  the  defendant, 
on  his  written  agreement  to  pay  certain  notes  of  plaintiff  out- 
standing, as  they  fell  due,  and  failed  to  do  it,  it  was  held  that  after 
the  notes  had  become  due  and  were  unpaid,  the  plaintiff  might,  in 
an  action,  recover  the  value  of  the  merchandise,  on  a  count  for 
goods  sold  and  delivered.  Colvin  v.  Carter,  4  Ohio,  354.  Where 
goods  are  sold  to  be  paid  for  in  other  articles  or  labor,  and  the 
vendee  fails  to  deliver  the  articles  or  do  the  labor,  the  seller  may 
recover  the  value  of  the  goods  sold  in  an  action  on  the  common 
count  for  goods  sold  and  delivered.  Newman  v.  McGregor,  5  Ohio, 
349,  352.  It  seems  that,  where  a  factor  sells  goods  contrary  to  in- 
structions, the  principal  is  authorized  to  treat  the  factor  as  a  pur- 
chaser, and  recover  the  value  of  the  goods  sold.  Woodward  v. 
Suyclam,  11  Ohio,  360. 

If  a  special  contract  has  been  performed,  then  an  action  may  be 
brought  upon  the  contract,  or  an  action  of  indebitatus  assumpsit 
for  the  work  and  labor,  or  for  goods  sold  and  delivered,  as  the  case 
may  be.  Withcrow  v.  Witherow,  20  Ohio,  238,  240.  So,  where 
one  has  sold  goods  to  another,  and  takes  his  note  for  the  price, 
and  the  note  is  innocently  altered  so  as  to  avoid  it,  the  seller  may 
recover  for  the  goods  sold  and  delivered.  Merrick  v.  Boury,  4 
Ohio  St.  60. 


FORMS    OP   PETITIONS.  361 


WORK    AND    LABOR. 

Wherever  there  is  a  special  contract  or  agreement  to  perform 
any  work,  a  general  indebitatus  assumpsit  will  lie,  when  the  work 
is  performed  and  completed.  Leigh  P.  P.  77  ;  Bull.,  K  P.  139. 
If  a  man  agrees  to  build  for  another  a  house,  in  this  case  he  has 
two  ways  of  declaring:  either  upon  the  original  executory  agree- 
ment, as  to  be  performed  in  futu.ro;  or  upon  an  indebitatus  assump- 
sit or  quantum  meruit,  when  the  house  is  actually  built  and  the 
agreement  executed.     Alcorn  v.  Westbrook,  1  "Wilson,  117. 

If  a  man  declare  upon  a  special  agreement  and  also  upon  a 
quantum  meruit,  and  at  the  trial  prove  a  special  agreement,  but 
different  from  what  is  laid,  he  can  not  recover  on  either  count : 
not  on  the  first,  because  of  the  variance  ;  nor  on  the  second,  be- 
cause there  was  a  special  agreement.  But  if  he  prove  a  special 
agreement  and  the  work  done,  but  not  pursuant  to  such  agree- 
ment, he  shall  recover  on  the  quantum  meruit,  for  otherwise  he 
would  not  be  able  to  recover  at  all.  Leigh  .N.  P.  78;  Cooke  v. 
Munstone,  1  N.  R.  355  ;  Cousins  v.  Paddon,  1  Gale,  305.  But  if  the 
plaintiff  deviate  from  the  specification,  he  can  not  recover  on  a 
quantum  meruit,  if  the  defendant  refuses  to  accept  the  subject  mat- 
ter of  the  contract.  Ellis  v.  Hamlin,  3  Taunt.  52.  Yet,  if  the 
defendant  adopts  the  deviations,  or  derives  a  benefit  from  the 
plaiutiff's  services,  he  must  pay  pro  tanto.  Burn  v.  Miller,  4  Taunt. 
745  ;  Farnsworth  v.  Garrard,  1  Camp.  38.  When  a  party  engages 
to  do  certain  work,  on  certain  specified  terms  and  in  a  certain 
specified  manner,  but  in  fact  does  not  perform  the  work  so  as  to 
correspond  with  the  specifications,  he  is  not  of  course  entitled  to 
recover  the  price  agreed  upon,  nor  can  he  recover  according  to 
the  actual  value  of  the  work,  as  if  there  had  been  no  special  con- 
tract. What  the  plaintiff  is  entitled  to  recover  is  the  price  agreed 
upon  in  the  specification,  subject  to  a  deduction,  and  the  measure 
of  that  reduction  is  the  sum  which  it  would  take  to  alter  the  work 
BO  as  to  make  it  correspond  with  the  specifications.  Per  Park,  J., 
Thornton  v.  Place,  1  M.  &  Rob.  -V.).  Where  there  was  an  express 
contract  that  the  plaintiff  should  repair  a  chandelier  for  £10,  and, 
niter  having  repaired  it  in  part  only,  he  brought  an  action  for  work 
done,  materia]  provided,  etc.,  it  was  held  that  he  could  do1  recover 
any  remuneration,  as  be  had  delivered  it  in  an  imperfect  state ;  the 
contract  was  entire,  and  the  plaintiff  had  not  performed  his  part 
of  it;  be,  therefore,  could  recover  nothing.  Sinclair  v.  Bowles,  9 
B.  &  C.  92;  S.   C,  17  Eng.  C.  L.  340;  Phelps  v.  Sheldon,  13  Pick. 


362  FORMS   OF   PETITIONS. 


50;  Watchman  r.  Crook,  5  Gill  &  Johns.  230;  Philbrook  v.  Bel- 
knap. 6  Vt.  383;  Sickle  v.  Pattison,  14  Wend.  257;  Brinley  v. 
Tibbits,  7  Greenl.  70;  Ilcyden  v.  Madison,  lb.  76;  Shaw  v.  Lewis- 
ton  T.  Co.,  2  Penn.  454;  Eoberts  v.  Havelock,  3  B.  &  Ad.  404;  S. 
C,  23  Eng.  C.  L.  105. 

By  way  of  defense,  the  defendant  may  show  that  the  work  or 
materials  were  of  an  inferior  description.  Cousins  v.  Pacldon,  1 
Gale,  305 ;  Boston  v.  Butler,  7  East,  479 ;  Wilmot  v.  Smith,  3  C.  & 
P.  453 ;  S.  C,  14  Eng.  C.  L.  38G.  If  there  has  been  no  beneficial 
service  there  shall  be  no  pay.  Heath  v.  Treeland,  1  M.  &  W.  543 ; 
Atkinson  v.  Bell,  8  B.  &  C.  277;  S.  C,  15  Eng.  C.  L.  216. 

Where  there  is  a  special  contract,  and  new  work  is  performed 
not  included  in  the  contract,  the  plaintiff  is  entitled  to  recover  the 
value  of  it  on  the  common  count  for  work  and  labor.  Bobson  v. 
Godfrey,  Holt,  236  ;  3  Eng.  C.  L.  85  ;  1  Starkie,  275  ;  S.  C,  2  Eng. 
C.  L.  388 ;  Dubois  v.  Del.  &  Hud.  Canal  Co.,  4  Wend.  285 ;  S.  C, 
12  Wend.  334 ;  Hollingshead  v.  Mactier,  13  Wend.  276. 

If  you  employ  a  man  to  build  a  house  on  3Tour  land  or  to  make 
a  chattel  with  your  materials,  the  party  who  does  the  work  has  no ' 
power  to  appropriate  the  produce  of  his  labor  and  your  materials 
to  any  other  person.  Having  bestowed  his  labor  at  your  recpiest 
on  your  materials  in  making  a  chattel,  he  may  maintain  an  action 
against  you  for  work  and  labor.  But  if  you  employ  another  to 
work  up  his  own  materials  in  making  a  chattel,  then  he  may  ap- 
priate  the  produce  of  that  labor  and  materials  to  any  other  person. 
No  right  to  maintain  any  action  vests  in  him  during  the  progress 
of  the  work  ;  but  when  the  chattel  has  assumed  the  character  bar- 
gained for,  and  the  employer  has  accepted  it,  the  j)arty  employed 
may  maintain  an  action  for  goods  sold  and  delivered;  or,  if  the 
employer  refuses  to  accept,  a  special  action  on  the  case  for  such 
refusal ;  but  he  can  not  maintain  an  action  for  work  and  labor  be- 
cause the  labor  was  bestowed  on  his  own  materials  and  for  himself, 
and  not  for  the  person  who  employed  him.  Per  Bailey,  8  B.  &  C. 
283. 

ACCOUNT    STATED. 

An  acknowledgment  by  the  defendant  that  a  certain  sum  is  due 
from  him  to  the  plaintiff  creates  an  implied  promise  to  pay  that 
sum,  and  will  enable  the  plaintiff  to  recover  it  upon  a  count  on  an 
account  stated.  Freeman  v.  Hurst,  1  Term,  42;  Knox  v.  Whalley, 
1  Esp.  159  ;  Dawson  v.  Remnant,  6  Esp.  24.  So  where  the  defend- 
ant said  that  he  would  call  and  settle  the  amount  of  an  account 


FORMS    OF    PETITIONS.  363 

which  had  been  sent  to  him,  it  was  held  sufficient.  Clark  v. 
Glennie,  3  Starkie,  10 ;  S.  C,  14  Eng.  C.  L.  147.  It  is  not  neces- 
sary that  the  defendant's  admission  should  relate  to  more  than  one 
item  or  transaction,  or  that  there  should  have  been  cross-dealings 
or  accounts  between  the  pai'ties ;  an  acknowledgment  of  a  debt, 
though  consisting  only  of  one  item,  is  sufficient.     Peacock  v.  Harris. 

10  East,  104;  2  Saund.  122,  n. ;  Knowles  v.  Michel,  13  East,  249  ; 
Highmore  v.  Primrose,  5  M.  &  G.  65.  The  rule  is  that  if  a  fixed 
and  certain  sum  is  admitted  to  be  due  to  the  plaintiff,  for  which  an 
action  would  lie,  it  will  be  evidence  to  support  a  count  upon  an 
account  stated.  Porter  v.  Cooper,  1  C.  M.  &  E.  387 ;  4  Tyr.  264 ; 
Ashby  v.  Ashby,  3  M.  &  P.  186 ;  Lord  Ellenborough,  C.  J.,  5M.& 
S.  67.  I  think  Knowles  v.  Michel,  13  East,  249,  is  an  authority  to 
show  that  though  in  form  a  count  upon  an  account  stated  is  "  of 
and  concerning  divers  sums  of  money,"  yet  proof  of  one  item  is 
good  to  maintain  such  a  count;  divers  maybe  supported  by  evi- 
dence of  one.  The  practice.  I  believe,  has  been  so,  and  if  there  is 
any  variation  from  it,  it  has  arisen  from  not  attending  to  the  form 
of  the  count.  This  count  docs  not  import  a  mutuality  of  account, 
and  there  seems  to  be  no  more  reason  why  an  account  should  not 
be  stated  consisting  of  one  item  only  as  well  as  a  plurality. 
Halroyd,  J. :  "  It  has  been  held  that  upon  an  account  for  goods 
sold  and  delivered,  the  plaintiff  may  prove  a  sale  of  one  article, 
and  that  will  be  enough.  The  same  rule  applies  to  this  count, 
which  is  'of  and  concerning  divers  sums,'  as  to  the  count  for 
goods  sold.  If  the  count  is  good,  it  is  enough  if  the  plaintiff  prove 
any  part  of  it."  Kirbie  v.  Emerson,  Clayton,  87 ;  Holmes  u. 
DeCamp,  1  Johns.  34 ;  Montgomery  v.  Ivers,  17  lb.  38.  The  ac- 
knowledgment by  a  defendant  that  a  certain  sum  is  due,  raises  an 
implied  promise  to  pay  the  amount,  and  it  is  recoverable  under  a 
count  for  an  account  stated.  Tasscy  v.  Church,  4  Watts  &  Serg. 
141 ;  Gilson  v.  Stewart,  7  Watts,  100.  If  the  account  includes 
specialties,  yet  the  balance  found  due  maybe  recovered  on  a  count 
for  an  account  stated.     Gilson  v.  Stewart,  supra;  Fitch  v.  Leitch, 

1 1  Leigh,  471 ;  Grant  v.  Healy,  3  Sumner,  523  ;  Burnham  v.  Spooncr, 
lu  X.  H.  532. 

Bui  the  acknowledgment  must  be  made  to  the  plaintiff,  or  his 
executor  or  :iL,r<'iit,  for  when  the  person  said  to  a  third  person  that 
lie  owed  a  certain  sum  to  the  plaintiff,  and  that  he  was  afraid  he 
was  going  to  pal  him  to  trouble, i1  was  held  insufficient  to  supporl 
an  account  stated.  Breckbn  y.  Smith,  1  Ad.  &  Ell.  488;  S.  C,  28 
Eng.  C.  L.  125.     It  lies  only  when  an  account  has  been  stated  with 


364  FORMS   OF   PETITIONS. 


reference  to  past  transaction.  Therefore,  where  the  landlord  of  an 
insolvent  tenant  got  possession  of  the  premises,  in  which  there 
were  fixtures  belonging  to  the  latter,  and  agreed  to  give  up  the 
possession  to  the  assignees  on  their  paying  £7  rent  due,  the  as- 
signees, having  taken  posssesion  of  the  fixtures,  refused  to  pay 
the  £7,  the  court  hold  that  it  could  not  be  recovered  from  them 
upon  an  account  stated,  as  the  agreement  was  not  based  upon  any 
previous  dealings  between  the  parties.  Clark  v.  Webb,  4  Tyr.  G73; 
S.  C,  1  C.  M.  &  E.  29 ;  Allen  v.  Cook,  2  Dow.  P.  C.  546.  So  when 
a  partnership  has  been  dissolved  and  a  final  balance  of  the  account 
has  been  struck  between  the  partners,  and  there  has  been  a  promise 
to  pay  the  balance,  it  may  be  recovered  under  this  count.  Foster 
v.  Allanson,  2  Term,  479 ;  Henley  v.  Sloper,  8  B.  &  C.  20 ;  S.  C,  15 
Eng.  C.  L.  147 ;  Bishop  v.  Chambers,  3  C.  &  P.  55 ;  S.  C,  14  Eng. 
C.  L.  207. 

The  acknowledgment  of  a  sum  due  must  be  absolute,  and  not 
accompanied  with  any  qualification  or  condition.  Evans  v.  Verity, 
B.  &  M.  239 ;  S.  C,  21  Eng.  C.  L.  427 ;  Wayman  v.  Hilliard,  7 
Bing.  101 ;  S.  C,  20  Eng.  C.  L.  62;  4  M.  &  P.  729  ;  Fidget  v.  Penny, 
1  C.  M.  &  B.  403.  It  must  also  expressly  or  by  reference  admit 
some  precise  sum  as  being  due.  Kiston  v.  Wood,  1  M.  &  B.  253; 
Teal  v.  Auty,  2  B.  &  B.  99 ;  S.  C,  6  Eng.  C.  L.  32;  Benasconi  v. 
Anderson,  M.  &  M.  183 ;  S.  C,  22  Eng.  C.  L.  285 ;  Green  v.  Davies, 
4  B.  &  C.  235;  S.  C,  10  Eng.  C.  L.  319  ;  Spencer  v.  Parry,  4  Nev. 
&  M.  770;  3  Ad.  &  Ell.  331 ;  1  H.  &  W.  179;  Leago  v.  Deane,  4 
Bing.  459  ;  S.  C,  15  Eng.  C.  L.  39 ;  1  M.  &  P.  227  ;  3  C.  &  P.  17  ; 
S.  C,  14  Eng.  C.  L.  255;  Salmon  v.  Watson,  4  Moore,  73  ;  S.  C, 
16  Eng.  C.  L.  363. 

The  sending  of  an  account  to  the  defendant  and  his  keeping  it, 
without  making  any  objection,  is  an  account  stated. 

MONEY   PAID. 

If  one  man  pays  or  expends  money  for  the  use  of  another, 
he  may,  in  general,  recover  it  in  an  action  for  money  paid.  But 
to  sustain  such  an  action,  it  must  appear  that  money  has  been 
paid  by  the  plaintiff  at  the  request  of  the  defendant  for  his  use  ;  or 
in  discharge  of  a  debt,  for  which  the  defendant  was  originally 
liable  to  a  third  party.  In  order  to  recover  on  this  count,  the 
plaintiff  must  show  an  express  or  implied  assent  of  the  defendant 
to  the  payment  of  the  money,  or  that  it  was  paid  on  compulsion,  or 
for  the  use  of  the  defendant.  Per  Tyndall.  C.  J.,  in  Grissell  v.  Bob- 
inson,  3  Bing.  N.  C.  15. 


FORMS   OF    PETITIONS.  365 


The  request  may  be  express,  or  implied,  first,  from  the  subsequent 
assent  of  the  defendant ;  secondly,  from  the  payment  being  made 
under  compulsion  of  law,  Johnson  v.  Mail  Co.,  L.  E.,  3  C.  B.  38, 
43  ;  and  thirdly,  from  the  defendant  being  under  a  legal  obligation 
to  pay  the  money  advanced  by  the  plaintiff. 

The  money  must  be  paid  ;  the  giving  a  security  unless  negotiable, 
to  pay  is  not  enough,  nor  is  the  delivery  of  property.  Taylor  v. 
Higgins,  3  East,  169 ;  Maxwell  v.  Jameson,  2  B.  &  A.  51 ;  Powers. 
Butcher,  10  B.  &  C.  346  ;  S.  C,  21  Eng.  C.L.  96  ;  Bucket  v.  Bohan- 
non„  3  Bibb.  378  ;  Morrison  v.  Berkey,  7  S.  &  B.  246 ;  Doebler  v. 
Fisher,  14  lb.  179  ;  Staymakeru.  Gundackcr,  10  lb.  75  ;  Kearney  v. 
Tanner,  17  lb.  94 ;  Greathouse  v.  Throckmorton,  7  J.  J.  Marsh,  18  ; 
Turner  v.  Egerton,  1  Gill  &  Johns.  433,  436.  Aliter  where  the 
property  has  been  received  as  money.  Ainslie  v.  Wilson,  7  Cowen, 
662  ;  Van  Ostrand  v.  Beed,  1  Wend.  424 ;  Stone  v.  Porter,  4  Dana, 
207.  If  a  surety  in  a  note  take  up  the  old  note  and  give  his  own 
for  the  amount,  this  is  a  payment  which  will  support  a  count  for 
money  paid  against  the  principal.  Neale  v.  Newland,  4  Pike,  506; 
Moore  v.  Pyrke,  11  East,  52. 

If  A  be  indebted  to  B,  and  C  pays  the  debt  without  the  consent 
of  A,  express  or  implied,  he  can  not  recover  it  from  A  in  an  action 
for  money  paid,  Stokes  v.  Lewis,  1   Term,  20  ;  1  Saund.  264,  n,  ; 
Exall  v.  Partridge,  8  Term,  310 ;  for  one  can  not,  by  the  voluntary 
payment  of  the  debt  of  another,  make  himself  creditor  of  that  other. 
Biehardson  v.  McBay,  1  Const.  472;  Baltimore  v.   Hughes,  1   Gill 
&  Johns.  497 ;  Turner  v.  Egerton,   1   lb.  433  ;  Benssalear  Glass 
Factory  v.  Keid,  5  Cowen,  603;  Weakley  v.  Brahan,  2  Stew.  500 
Rumney  v.  Ellsworth,  4  N.  H.  138  ;  Little  v.  Gibbs,  1  South.  213 
Jones  v.  Wilson,  3  Johns.  434  ;  Menderback  v.  Hopkins,  8  lb.  436 
Beach  v.  Vandenburg,  10  Johns.  361  ;  Walkill   v.  Mamukating,  14 
lb.  87  ;  Smith  v.  Crocker,  2  Boot,  84;  Wells  v.  Porter,  7  Wend. 
119  ;  Winson  v.  Savage,  7  Met.  346;  Pearson  v.  Parker,  3  N.  H. 
366  ;  8  .Johns.  202;  2  Vt.  213 ;  4  Pick.  447  ;  1  Hill,  234;  6  Greenl. 
333;  7  lb.  355;  1  lb.  152. 

If  there  be  no  previous  request,  it  will  be  implied  from  a  subse- 
quent a>si  nt.  upon  the  maxim  omnisrati  habitio  retrotrahitur  etman- 
dato  (equiparatiir.  Or  if  the  plaintiff  be  undera  legal  obligation  to 
make  the  payment;  or  if  money  is  paid,  for  the  use  of  a  person 
who  is  bound  hi  pay  if  under  compulsion  of  law,  a  previous  request 
will  be  implied.  As  when  the  plaintiff  at  ropiest  of  attorney  of 
defendant,  paid  money  on  his  aooount,  and  being  told  of  it,  did  not 
object  or  disclaim,  it  was  held  that  he  was  liable  for  tho  money,  as 


366  FORMS   OP    PETITIONS. 


money  paid  to  his  use.  JDightfoot  v.  Creed,  8  Taunt.  2G8 ;  S.  C,  4 
Eng.  C.  L.  100.  Where  the  goods  of  a  stranger  tire  on  the  prem- 
ises of  another  and  are  there  distrained  for  rent,  and  the  owner 
pays.the  rent  to  redeem  his  goods,  he  can  maintain  an  action  for 
money  paid  against  the  lessees  who  owed  the  rent.  Exall  v. 
Partridge.  8  Term,  308;  Wells  v.  Porter,  7  Wend.  11!).  On  the  same 
principle,  where  the  indorser  of  a  bill  of  exchange  being  sued  by 
the  holder,  paid  him  part  of  the  bill,  it  was  held  he  might  recover 
the  same  from  the  acceptor  in  an  action  for  money  paid.  Pownall 
v.  Ferrand,  G  B.  &  C.,  439;  S.  C,  13  Eng.  C.  L.  230  ;  Dawson  v. 
Morgan,  9  B.  &  C.  618  ;  S.  C,  17  Eng.  C.  L.  457  ;  Seaveru.  Seaver, 
6  C.  &  P.  673;  S.  C,  25  Eng.  C.  L.  591 ;  Howes  v.  Martin,  1  Esp. 
162.  So  where  a  person  pays  a  bill  for  the  honor  of  one  of  the  par- 
ties, he  may  recover  the  amount  from  the  person  for  whose  use  he 
paid  it.  Smith  y.  Nissen,  1  Term,  269  ;  Bleaden  v.  Charles,  7  Bing. 
246;  S.  C,  20  Eng.  C.  L.  119  ;  Hales  v.  Freeman,  1  B.  &  B.  391  ; 
S.  C,  5  Eng.  C.  L.  131 ;  Jenkens  v.  Tucker,  1  H.  Bl.  90  ;  Foster  v. 
Ley,  2  Bing  N.  C.  260;  S.  C,  29  Eng.  C.  L.  331;  Alexander  v. 
Vane,  1  M.  &  W.  511  ;  Brown  v.  Hodgson,  4  Taunt.  189  ;  Sill  v. 
Laing,  4  Campb.  81  ;  Dawson  v.  Linton,  5  B.  &  A.  521  ;  S.  C,  7 
Eng.  C.  L.  179. 

Where  one  is  surety  for  another  and  is  compelled  to  pay  the 
debt,  he  may  recover  it  in  an  action  on  account  for  money  paid, 
for  the  law  in  such  a  case  implies  a  promise  on  the  part  of  the 
principal  to  pay  the  surety  for  the  money  thus  paid  by  him  for  the 
use  of  the  principal.  Toussaint  v.  Mortinant,  2  Term,  104.  In  all 
cases  where  one  of  two  or  more  joint  sureties  pays  money,  which 
either  of  them  might  be  called  on  to  pay,  he  can  in  this  form  of 
action  recover  of  each  surety  his  proportion  of  the  sum  so  paid 
Cornell  v.  Edwards,  2  B.  &  P.  268;  Deering  v.-  Earl  of  Win  Chel- 
sea, lb.  270.  But  if  any  of  the  sureties  are  insolvent,  he  must  go 
into  equity  to  make  the  solvent  ones  pay  the  proportionate  share 
of  the  insolvent  ones.  Brown  v.  Lee,  6  B.  &  C.  689;  S.  C,  13  Eng. 
C.  L.  294  ;  Peter  v.  Kich,  1  Ch.  Cas.  34,  696  ;  Bosley  v.  Taylor,  5 
Dana,  157  ;  Johnson  v.  Johnson,  11  Mass.  359  ;  Batchelder  v.  Fiske, 
17  lb.  464;  Crowclers  v.  Shelby,  6  J.  J.  Marsh.  62;  Mitchel  v. 
Sproul,  5  lb.  270;  Lidderdale  o.  Robinson,  2  Brock.  160;  Harris  v. 
Ferguson,  2  Bailey,  397  ;  1  Hill,  282  ;  Taylor  v.  Savage,  12  Mass. 
98.  There  is  no  contribution  between  tort  feasors.  1  Leigh  N. 
P.  75  ;  Merryweather  v.  Nixon,  8  Term,  186;  Colborne  v.  Patmore, 
1  C.  M.  &  R.  72  ;  Betts  v.  Gribbens,  4  Nev.  &  M.  77 ;  Adamson  v. 
Jarvis,  4  Bing.  66  ;  S.  C,  13  Eng.  C.  L.  343  ;  Shackell  v.  Rosier,  2 


FORMS   OP    PETITIONS.  367 


Bing.  N.  C.  634  ;  S.  C.,  29  Eng.  C.  L.  438;  Sadler  v.  Nixon,  5  B.  & 
Ad.  036  ;  S.  C,  29  Eng.  C.  L.  247. 

Where  one  becomes  joint  surety  with  plaintiff  at  his  request,  the 
plaintiff  can  not  call  on  him  to  contribute.  Daniel  v.  Ballard,  2 
Dana,  296  ;  Byers  v.  McClanahan,  6  Gill  &  Johns.  256 ;  Blake  v. 
Gole,  22  Pick.  97.  If  two  joint  obligors  be  sued,  and  one  of  them 
gives  bail,  such  bail  can  not,  upon  being  compelled  to  pay  the  debt, 
sustain  an  action  against  the  other  obligor  for  money  paid.  Os- 
born  v.  Cunningham,  4  Dev.  &  Batt.  423. 

No  right  of  action  accrues  to  one  surety,  who  has  paid  the  debt, 
against  the  other  till  notice  is  given  the  co-surety.  Carpenter  v. 
Kelly,  9  Ohio,  106. 

MONEY    HAD    AND    RECEIVED. 

In  general,  whenever  the  defendant  has  received  money  which 
is  the  property  of  the  plaintiff,  and  which  the  defendant  is  obliged, 
by  the  ties  of  natural  justice  and  equity,  to  refund,  it  may  be  re- 
covered from  him  in  an  action  for  money  had  and  received  to  the 
plaintiff's  use.  Per  Lord  Mansfield,  C.  J.,  in  Moses  v.  Macfarlen, 
2  Burr,  1012.  This  form  of  action  has  been  extended  on  the  prin- 
ciple of  its  being  considered  like  a  bill  in  equity.  In  order  to  re- 
cover, the  plaintiff  must  show  that  he  has  equity  and  conscience 
on  his  side,  and  that  he  could  recover  in  a  court  of  equity. 

In  many  eases,  where  the  defendant  has  received  money  which 
belonged  to  the  plaintiff,  under  circumstances  which  would  render 
him  liable  in  an  action  ex  delicto,  the  plaintiff  may  waive  the  tort, 
and  sue  in  an  action  for  money  had  and  received.  Where  one 
man  has  money  which  equitably  belongs  to  another,  it  may  gener- 
ally be  recovered  in  an  action  for  money  had  and  received  to  the 
use  of  the  plaintiff;  and  even  where  money  is  received  after  and  in 
consequence  of  an  act  of  trespass,  in  many  eases  the  tort  may  be 
waived,  and  the  money  itself  sought  in  a  suit  as  received  to  the 
ii--  of  the  plaintiff.  Rickey  u.Hinde,  6  Ohio,  371,  379.  Thewholo 
extent  of  l  he  doctrine  of  waiving  a  tort  and  bringing  an  action  for 
money  had  and  received,  is,  that  one  whose  goods  have  been  taken 
from  him,  or  detained  unlawfully,  whereby  he  has  a  right  to 
an  action  oi  trespass  or  trover,  may,  if  the  wrong-door  sell  the 
goods  and  receive  the  money  for  them,  waive  the  tort,  affirm  the 
sale,  and  maintain  this  action  lor  the  money  had  and  received  by 
the  wrong  doer  for  the  goods  so  sold.  Jones  v.  Hoar,  5  Pick.  285; 
Willet  v.  Willei.  :;  Watts,  277;  Pritchard  v.  Ford,  1  .)..!.  Marsh. 
643;  Saunders  r.  Hamilton,  '■'>  Dana,  552;  Stocket  v.  Watkins,  2 
Gill  &  Johns.  326;  Bank  of  North  America  c.  McCall,4  Binn.  .'171 ; 


368  FORMS    OF    PETITIONS. 


Webster  v.  Drinkwater,  5  Greenl.  319,  323  ;  Chauncey  v.  Yeaton,  1 
N.  II.  151;  Morrison  v.  Eogers.  2  Scam.  317;  10  Watts,  431;  1 
Smcdes  &  M.  31  ;  5  Hill,  577.  So  where  there  is  a  contest  between 
two  persons  as  to  which  has  the  right  to  an  office,  and  one  is  in 
posssession,  and  has  received  the  salary  or  fees  attached  to  it,  the 
other  may  sue  the  one  in  possession  for  money  had  and  received  to 
his  use,  and  if  the  plaintiff  succeed  in  proving  his  right  to  the 
office,  he  can  recover  the  amount  of  money  the  defendant  has  re- 
ceived as  salary  or  fees  on  a  count  for  money  had  and  received. 
Being  entitled  to  the  office,  the  money  so  received  is  the  plaintiff's, 
and  in  equity  the  defendant  received  it  for  the  plaintiff's  use.  1 
Leigh  N.  P.  45;  Poland  v.  Hall,  1  Hodges,  111;  1  Scott,  539; 
Bayter  v.  Dodsworth,  6  Term,  681 ;  Powell  v.  Millbank,  1  Term, 
399,  note;  Green  v.  Hewett,  Peake,  182. 

The  courts,  however,  will  not  allow  the  title  to  land  to  be  tried 
in  this  form  of  action.  Therefore,  rents  received  by  one  holding 
adversely  are  not  recoverable  under  this  form  of  action.  1  Leigh 
P.  P.  46. 

Money  must  have  been  received. — It  must  appear  that  the  de- 
fendant received  money  for  the  use  of  the  plaintiff.  Any  other 
consideration  will  not  be  sufficient  to  sustain  this  action.  Whar- 
ton v.  Walker,  4  B.  &  C.  103  ;  S.  C,  10  Eng.  C.  L.  302  ;  Moore  v. 
Pyrke,  11  East,  52  ;  Maxwell  v.  Jameson,  2  B.  &  A.  51 ;  Davies 
v.  Watson,  2  N.  &  M.  709;  S.  C,  28  Eng.  C.  L  377;  Green  v. 
Rowan,  7  C.  &  P.  119.  If  it  were  necessary  to  consider  the 
question  whether  anything  short  of  the  actual  receipt  of  money 
would  sustain  this  action  for  money  had  and  received,  we  should 
find  little  difficulty  in  deciding  that  that,  which  was  equivalent  to 
money,  or  had  been  available  to  the  party  as  such,  would  sustain 
the  action.  Graham  v.  Bank  of  U.  S.,  5  Ohio,  265,  266.  Where  a 
party  bids  off  property  at  a  public  sale,  or  sale  on  execution,  to 
protect  a  previously  purchased  title,  persons  interested  in  the  pro- 
ceeds of  the  sale  may  consider  it  as  money  in  his  hands  received 
for  their  use,  and  recover  what  of  it  belongs  to  them  severally,  in 
an  action  for  money  had  and  received.  lb.  And  negotiable 
promissory  notes  received  by  the  defendant  are  often  regarded  as 
money.  Floyd  v.  Day,  3  Mass.  405  ;  Hemmenway  v.  Bradford,  14 
Mass.  122  ;  Willie  v.  Green,  2  N.  II.  333  ;  Clark  v.  Penney,  6  Cowen, 
297  ;  Murray  v.  Pate,  6  Dana,  335  ;  Hathaway  v.  Burr,  8  Shepley, 
567  ;  Hatton  v.  Robinson,  4  Blackf.  479  ;  Haskins  v.  Dunham,  An- 


FORMS   OP   PETITIONS.  369 


thon,  81.  What  the  defendant  has  received  as  money  to  him,  is 
money  to  be  recovered  in  this  form  of  action.  Such  now  seems  to 
be  the  settled  rule. 

Money  obtained  or  paid  by  mistake. — Money  paid  under  a  mis- 
take or  ignorance,  but  with  a  knowledge  of  the  facts,  or  with  the 
means  of  such  knowledge,  can  not  be  recovered  back.  Elliot  v. 
Swartwout,  10  Peters,  137;  Mowatt  v.  Wright,  1  Wend.  355; 
Clark  v.  Dutcher,  9  Cowen,  074 ;  Hubbard  v.  Martin,  8  Yerg.  498 ; 
Jones  v.  Watkins,  1  Stew.  81 ;  Dickens  v.  Jones,  6  Yerg.  483 ; 
Elting  v.  Scott,  2  Johns.  157;  Ladd  v.  Kenney,  2  1ST.  H.  341 ;  Lee 
v.  Stuart,  2  Leigh,  76.  But  not  ignorance  of  the  law  of  a  for- 
eign country,  or  of  another  State  of  the  Union.  Haven  v.  Foster, 
9  Pick.  112  ;  Norton  v.  Marden,  3  Shepley,  45.  In  this  class  of 
cases,  there  was  once  a  contract,  or  legal  liability,  which  has 
been  terminated  by  a  state  of  facts,  and  it  is  ignorance  of  the 
legal  effect  of  these  facts  which  prevent  a  recovery ;  the  party  pay- 
ing supposing  on  the  facts  he  is  still  liable,  when  in  law  he  is  not. 
Mayor  v.  Judah,  5  Leigh,  305;  Bean  v.  Jones,  8  N.  H.  149;  Filgo 
v.  Penney,  2  Murph.  182  ;  Norton  v.  Marden,  3  Shepley,  45;  1  Ala. 
406;  9  Watts,  462 ;  Osgood  v.  Jones,  28  Maine,  312  ;  3  B.  Mon.  510; 
Glover  v.  Collins,  3  Harr.  232  ;  Goddard  v.  Putnam,  22  Maine,  363 ; 
Bank  v.  Ballard,  7  How.  (Miss.)  371 ;  Wheadon  v.  Olds,  20  Wend. 
174.  In  Ohio,  a  mistake  of  law  in  drawing  up  a  contract  may  be 
relieved  against  in  chancery.  Williams  v.  Champion,  6  Ohio,  169; 
Young  v.  Miller,  10  Ohio,  85;  McNaughten  v.  Patridge,  11  Ohio, 
223,  232  :  Evants  v.  Strode's  Adm'r,  11  Ohio,  480.  If  such  a  mis- 
take can  be  corrected  in  equity,  in  a  written  agreement,  such  a  mis- 
take must  be  held  not  to  prejudice  a  party  paying  money. 

The  rule  in  regard  to  this  subject  of  money  paid  by  mistake  is 
thus  stated  by  Lord  Mansfield,  C.  J.,  in  Bizo  v.  Dickason,  1  Term, 
285.  He  said  that,  "if; a  man  has  actually  paid  what  the  law 
would  not  have  compelled  him  to  pay.  but  what  in  equity  and  con- 
science he  ought,  he  can  not  recover  it  back  in  an  action  for  money 
had  ami  received.  So  where  a  man  has  paid  a  debt  which  would 
Otherwise  have  been  barred  by  the  statute  of  limitations,  or  a  debt 
contracted  during  his  infancy,  which  in  justice  he  might  discharge, 
though  the  law  would  not  have  compelled  payment;  yet,  the  money 
being  paid,  it  will  not  oblige  the  payee  to  refund  it.  But  where 
money  is  paid  under  a  mistake,  which  there  is  no  ground  to  claim 
in  conscience,  the  party  may  recover  it  back  again  in  this  form  of 
vol  i — 24 


370  FORMS   OF   PETITIONS. 


:u-t inn."  So  money  paid  on  a  void  bill  may  bo  recovered  back. 
Milner  r.  Duncan,"  (I  B.  &  C.  671;  S.  C.,  13  Eng.  C.  L.  293.  So 
when  one  has  paid  rent  to  A,  and  is  then  ejected,  and  has  to  pay 
mesne  profits  for  the  same  time  the  rent  covered,  he  may  recover 
the  money  back,  A  not  selling  up  any  title  to  the  land  at  the  trial. 
Newsome  v.  Graham,  10  B.  &  C.  231;  S.  C,  22  Eng.  C.  L.  G3; 
Hodson  v.  Williams,  G  Esp.  29  ;  Brydges  v.  Walford,  6  M.  &  S.  42. 
So,  if  a  Bheriff  pays  the  money  made  on  execution  to  the  plaintiff, 
knowing  he  has  committed  an  act  of  bankruptcy,  the  assignees  can 
recover  it  back  from  the  sheriff  or  plaintiff  in  this  form  of  action. 
Notley  v.  Buck,  8  B.  &  C.  100 ;  S.  C,  15  Eng.  C.  L.  178.  So  where 
an  account  was  by  mistake  overpaid.  Lucas  v.  Warswick,  1  M.  & 
Bob.  293. 

Money  paid  on  a  forged  instrument. — If  a  party,  exercising 
due  caution,  has,  by  mistake,  paid  money  on  a  forged  instru- 
ment, and  has  been  guilty  of  no  laches,  whereby  the  rights  of 
a  third  party  have  been  affected,  he  may  recover  back  the  sum 
so  paid  in  an  action  for  money  had  and  received  ;  as  when  the 
plaintiff  discounted  a  forged  navy  bill  for  the  defendant,  both 
parties  being  at  the  time  ignorant  of  the  forgery,  it  was  held  that 
he  might  recover  back  the  amount  in  an  action  of  this  kind.  Jones 
v.  Byde,  5  Taunt.  488 ;  S.  C,  1  Eng.  C.  L.  100 ;  Bruce  v.  Bruce,  5 
Taunt.  495  ;  S.  C,  1  Eng.  C.  L.  170  ;  Fuller  v.  Smith,  K.  &  M.  49 ; 
S.  C,  21  Eng.  C.  L.  379.  So,  where  one  paid  a  bill  for  the  honor 
of  a  customer,  and  discovering  the  forgery  and  notifying  at  once 
the  holder  and  demanding  the  repayment  of  the  money,  that  he 
might  recover  back  the  money  as  paid  by  mistake,  the  mistake 
having  been  discovered  in  time  to  give  notice  to  all  parties  liable 
thereon.  Wilkinson  v.  Johnston,  3  B.  &  C.  428  ;  S.  C,  10  Eng.  C. 
L.  140.  So,  where  one  of  two  partners  obtained  money  on  a  note 
payable  at  a  future  day,  signed  by  him  with  the  name  of  the  firm, 
and  with  a  forged  indorsement  of  a  third  person,  the  lender  was 
held  entitled,  on  discovering  the  forgery,  to  an  action  for  money 
had  and  received  against  the  firm.  Man.  &  Mech.  Bank  v.  Gore, 
15  Mass.  75 ;  Boardman  v.  Gore,  15  lb.  331 ;  Wilson  v.  Alex- 
ander, 3  Scam.  392 ;  Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287  ; 
Talbot  v.  Bank  of  Bochester,  1  lb.  295 ;  Coggill  v.  The  American 
Exchange  Bank,  1  K  Y.  113  ;  86  Eng.  C.  L.  314.  But  where  a  bill 
is  paid  by  the  drawees  to  a  bona  fide  holder,  for  a  valuable  consid- 
eration, the  drawee  can  not  recover  back  the  money.  The  drawee 
and  acceptor  ought  to  know  the  signature  of  the  drawers.     Price 


FORMS    OF   PETITIONS.  371 


v.  Neal,  3  Burr,  1354  ;  Wilkinson  v.  Johnston,  3  B.  &  C.  43-4 ;  S.  C, 
10  Eng.  C.  L.  142.  So,  when  a  banker,  at  whose  house  a  bill  pur- 
porting to  he  accepted  by  one  of  his  customers  was  made  payable, 
paid  the  amount  to  a  bona  fide  holder,  and  did  not  discover  until  a 
week  after  that  it  was  a  forgery,  it  was  held  that  he  could  not  re- 
cover the  sum  paid  from  such  holder,  for  he  ought  to  know  the 
signature  of  his  customer;  and,  by  his  delay  in  discovering  the 
mistake,  he  deprived  the  holder  of  a  remedy  against  the  other  par- 
ties to  the  bill.  Smith  v.  Mercer,  C  Taunt.  76  ;  S.  C,  1  Eng.  C.  L. 
312  ;  Young  v.  Grote,  4  Bing.  258 ;  S.  O,  13  Eng.  C.  L.  420.  The 
same  principle  maintained  and  applied  in  the  case  of  Ellis  &  Mor- 
ton v.  Ohio  Life  Ins.  and  Trust  Co.,  4  Ohio  St.  628  ;  Hall  v.  Fuller, 
5  B.  &  C.  750 ;  S.  O,  12  Eng.  C.  L.  368.  So,  where  one  stock  was 
sold  under  a  power  forged  by  one  of  a  firm,  it  was  held  that  the 
owner  of  the  stock  might  recover  the  money  of  the  innocent  part- 
ners of  the  forger,  who  received  the  proceeds  of  the  sale.  Marsh 
v.  Keating,  1  Bing.  N.  C.  198  ;  S.  O,  27  Eng.  C.  L.  354. 

On  failure  of  consideration. — Money  paid  on  a  consideration 
which  subsequently  failed,  may,  in  general,  be  recovei'ed  back  in  an 
action  for  money  had  and  received. 

Where  a  deed  granting  an  annuity  was  set  aside  for  informality 
in  registering  the  memorial,  it  was  held  that  an  action  for  money 
had  and  received  would  lie  to  recover  back  the  purchase  money. 
Shone  v.  Webb,  1  Term,  732  ;  Seurfield  v.  Gowland,  6  East,  241 ; 
Waters  v.  Mansell,  3  Taunt,  56  ;  Cowper  v.  Godmond,  9  Bing.  748  ; 
S.  O,  23  Eng.  C.  L.  452.  So,  where  money  has  been  paid  in  aid 
of  a  scheme  which  was  abandoned,  it  was  held  that  the  subscribers 
could  recover  back  what  they  had  severally  paid.  Nockells  v. 
Crosby,  3  B.  &  C.  814;  S.  O,  10  Eng.  C.  L.  237. 

Where  some  act  is  to  be  done  by  each  party,  under  a  special 
agreement,  and  the  defendant,  by  his  neglect,  prevents  the  plaintiff 
from  executing  the  agreement,  the  plaintiff  may,  in  this  form  of 
net  ion.  recover  back  any  money  lie  has  paid  under  it.  Giles  V.  Ed- 
wards. 7  Term,  181.  But  if  the  contract  has  been  in  part  per- 
formed, and  the  plaintiff  has  derived  any  advantage  from  it,  this 
action  can  not  he  maintained.  I1>.  ;  Brinley  v.  Tibbets,  7  Green- 
1'  af,  70.  So  money  paid  on  a  parol  contract  for  purchase  of  lands 
may  he  recovered  back  on  accounl  for  money  had  and  received,  if 
the  vndor  refuse  or  neglect  to  execute  the  contract.  Buck  V. 
Waddle,  1  I  >hio,  o.~>7.      So   money  paid    in   advance   on    account  of 

Labor  to  be  done,  may  be  recovered  back  in  this  form  of  action,  in 


372  FORMS   OP   PETITIONS. 


case  of  non -performance.  Wheeler  v.  Board,  12  Johns.  363  ;  Davis 
v.  Marston,  5  Mass.  199.  So  money  paid  for  goods  which  do  not 
answer  the  description  sold,  may,  on  goods  being  returned  or  ten- 
dered hack,  be  recovered  back  in  this  form  of  action.  Bradford  v. 
Manlcy,  13  Mass.  139  ;  Connor  v.  Henderson,  15  Mass.  319 ;  Martin 
v.  Howell,  2  Const.  750.  So  where  the  contract  of  sale  is  rendered 
void  by  the  fraud  of  the  seller,  and  which  the  buyer  has  rescinded 
by  a  seasonable  return  or  offer  to  return.  Kimball  v.  Cunning- 
ham, 4  Mass.  502;  Norton  v.  Young,  3  Greenl.  30.  Where  the 
property  is  of  any  value,  there  must  first  be  a  return  or  offer  to 
return,  Warren  v.  Wheeler,  1  Chip.  159;  Wharton  v.  O'Hara,  2 
N.  &  M.  G5 ;  unless  there  has  been  an  entire  failure  of  considera- 
tion. Byers  v.  Bastick,  2  Const.  75.  Nott,  J.,  in  Wharton  v.  O'Hara, 
supra,  says  :  "  I  apprehend  it  is  well  settled  that  a  person  can  not 
recover  on  a  single  count  for  money  had  and  received,  unless  there 
has  been  a  return  of  the  property,  or  at  least  a  tender  of  it,  or  where 
there  has  been  an  entire  failure  of  consideration."  French  v.  Mil- 
lard, 2  Ohio  St.  44 ;  Creps  v.  Baird,  3  lb.  277.  The  plaintiff  must 
be  in  a  situation  to  restore  the  defendant  that  for  which  the  money 
was  paid,  or  show  that  the  defendant  prevented  it.  Reed  v.  Mc- 
Grew,  5  Ohio,  386.  Where  the  entire  consideration  fails,  money 
paid  may  be  recovered  back  in  this  form  of  action.  Spring  v. 
Coffin,  10  Mass.  34;  Lacoste  v.  Flotard,  1  Const.  467;  Duncan  v. 
Bell,  2  N.  &  McCorcl,  153  ;  Pettibone  v.  Roberts,  2  Root,  258;  Neel 
v.  Deans,  1  !N.  &  McC.  210.  Money  paid  on  a  parol  contract  for 
land,  when  the  vendor  fails  to  convey,  may  be  recovered  back. 
Hunt  v.  Sanders,  1  Marsh.  552  ;  Allen  v.  Barker,  2  Stew.  21 ;  Mad- 
dcra  v.  Smith,  3  lb.  119;  Grant  v.  Craigmiles,  1  Bibb,  206;  Bed- 
enger  v.  Whittamore,  2  J.  J.  Marsh.  563  ;  DeUtriecht  v.  Melchor,  1 
Dall.  428;  Wilson  v.  Jordan,  3  Stew.  &  P.  92.  Where  the  money 
is  paid  on  a  quitclaim  deed,  the  money  can  not  be  recovered  back, 
though  the  title  is  defective,  unless  there  be  fraud  in  vendor. 
Gates  v.  Winslow,  1  Mass.  65  ;  Higley  v.  Smith,  1  Chip.  409  ;  Wallis 
v.  Wallis,  4  Mass.  135  ;  Emerson  v.  Wash  Co.,  9  Greenl.  94;  Cog- 
gill  v.  Exchange  Bank,  1  K.  Y.  113.;  37  N.  Y.  332,  Patrick  v.  Met- 
calf ;  Colvin  v.  Holbrook,  2  N.  Y.  126 ;  L.  R.  3.  Q.  B.  753. 

Money  obtained  by  fraud. — Whenever  the  defendant  has  received 
money  belonging  to  the  plaintiff  under  any  fraud,  false  color, 
deceit,  duress,  extortion,  or  oppression,  the  plaintiff  may  recover  it 
back  in  an  action  of  this  kind ;  for  he  may  waive  the  tort  and  rely  on 
the  contract,  which  the  law  in  such  a  case  implies  for  him.     1  Leigh 


FORMS   OF   PETITIONS.  373 


N.  P.  62 ;  1  Caropb.  124;  Abbotts  v.  Barry,  2  B.  &  B.  369;  S.  C.,  6 
Eng.  C.  L.  157;  Harrison  v.  Walker,  Peake,  111 ;  Bristow  v.  East- 
man, lb.  223;  Hagan  v.  Shee,  2  Esp.  522;  Dupen  v.  Keeling,  4  0. 
&  P.  102;  S.  C,  19  Eng.  C.  L.  295 ;  Eobson  v.  Eaton,  1  Term,  62. 

If  the  defendant,  having  taken  advantage  of  the  plaintiff's 
situation,  obtain  money  from  him  by  compulsion,  to  which  in  justice 
he  is  not  entitled,  the  plaintiff  may  recover  it  back  in  this  form  of 
action.  Fulham  v.  Down,  6  Esp.  26 ;  Codaval  v.  Collins,  6  N.  &  M. 
329.  So  a  voluntary  payment  of  an  illegal  demand  to  redeem  the 
person,  or  the  goods,  may  be  the  subject  of  such  an  action.  Chase 
v.  Dwinal,  7  Greenleaf,  134.  Weston,  J.,  in  this  last  case,  says: 
"It  has  been  laid  down  as  a  general  principle,  that  an  action  for 
money  had  and  received  lies  for  money  got  through  imposition, 
extortion,  or  oppression,  or  an  undue  advantage  taken  of  the 
party's  situation.  Moses  v.  McFarlane,  2  Burr,  1005;  Smith  v. 
Bromley,  Doug.  696.  In  Astley  v.  Eeynoids,  2  Strange,  916,  an 
action  was  sustained  to  recover  money,  extorted  by  a  pawnbroker, 
for  the  redemption  of  plate  ;  notwithstanding  it  was  objected  that 
the  payment  was  voluntary.'  In  Hall  v.  Schultz,  4  Johns.  240, 
Spencer,  J.,  sa}'s  this  case  has  been  overruled  by  Lord  Kenyon  in 
Knibbs  v.  Hall,  1  Esp.  84.  There  the  plaintiff  had  paid,  as  he 
insisted,  five  guineas  more  rent  than  could  have  been  rightfully 
claimed  of  him  to  avoid  a  distress  which  was  threatened.  Lord 
Kenyon  held  this  to  be  a  voluntary  payment,  and  not  upon  com- 
pulsion ;  as  the  party  might  have  protected  himself  from  a  wrongful 
distress  by  replevin.  His  lordship  docs  not  advert  to  the  case  of 
Astley  v.  Eeynoids ;  and  subsequently  in  Cartwright  v.  Eawley,  2 
Esp.  723,  he  infers  with  approbation  to  an  action  within  his  recol- 
lection, for  money  had  and  received,  brought  against  the  steward 
of  a  manor,  to  recover  money  paid  for  producing  at  a  trial  some 
deeds  and  court-rolls,  for  which  he  bad  charged  extravagantly.  It 
was  urged  that  the  payment  was  voluntary;  but  if  appearing  that 
t  1m-  party  could  not  do  without  the  deeds,  and  that  the  money  was 
paid  through  Hie  urgency  of  the  ease,  the  action  was  sustained. 
Had  the  distress  threatened  in    Knibbs  V.  Hall  been  actually  made, 

money  paid  to  relieve  the  goods  could  have  been  recovered  in 
■/> -ii  upon  a  principle,  which  will  be  subsequently  noticed. 
"In  Stevenson  v.  Mortimer,  Cowper,  805,  the  plaintiff  recovered 

in  an  action  I'M-  money  bad  and    received,  an  excess  of  lees  by  him 

paid  to  a  custom-house  officer,  t<>  obtain  a  document  be  was  under 
tin-  necessity  of  procuring. 


374  FORMS   OF    PETITIONS. 


"In  Ripley  v.  £relston,  2  Johns.  201,  the  plaintiff  recovered  in 
assumpsit  of  the  collector  of  New  York,  money  illegally  claimed  by 
him  as  tonnage  and  light  money,  and  which  the  plaintiff  paid  to 
obtain  a  clearance  of  his  vessel.  In  Clinton  v.  Strong,  9  Johns. 
370,  money  was  reclaimed,  which  had  been  wrongfully  exacted  by 
the  clerk  of  the  District  Court,  for  the  redelivery  of  property  which 
had  been  seized.  In  the  foregoing  cases,  the  payments  were  not 
deemed  voluntary,  but  extorted  and  compulsory. 

"  It  may  be  insisted  that  trespass  or  replevin  would  have  been 
more  appropriate  remedies  for  the  plaintiff.  Either  might  doubt- 
less have  been  maintained  ;  and  when  they  are  specific  remedies 
provided  by  law  for  a  peculiar  class  of  injuries,  assumpsit  can  not 
be  substituted.  It  was  upon  this  ground  that  Lindon  v.  Hooper, 
Cowper,  414,  was  decided.  Cattle  damaged  pens,  and  had  been 
wrongfully  distrained ;  money  had  been  paid  for  their  liberation, 
and  an  action  for  money  had  and  received  brought  to  recover  it. 
The  action  did  not  prevail.  The  court  place  their  opinion  expressly 
on  the  nature  of  the  remedy  by  distress,  which  they  say  is  singular 
and  depends  upon  a  peculiar  system  of  strict  positive  law;  that 
the  distrainor  has  a  certain  course  prescribed  to  him,  which  he 
must  take  care  formally  to  pursue  ;  and  that  the  law  has  provided 
two  precise  remedies  for  the  owner  of  the  cattle,  which  may  happen 
to  be  wrongfully  distrained — replevin,  and,  after  paying  the  sum 
claimed,  trespass,  in  which  such  payment  must  be  specially  averred 
and  set  forth  as  an  aggravation  of  the  trespass.  These  are  to  fol- 
low the  pleadings,  which  put  directly  in  issue  the  validity  of  the 
distress.  From  a  case  of  this  peculiar  character,  decided  upon  this 
special  ground,  no  general  principle  can  be  extracted,  which  can 
govern  cases  where  the  law  of  distress  does  not  apply. 

"  Irving  v.  Wilson,  4  D.  &  E.  485,  is  a  case  strongly  resembling 
the  one  now  before  the  court.  A  revenue  officer  seized  goods,  not 
liable  to  seizure,  but  demanded  money  for  their  release,  which  the 
owner  paid.  This  was  recovered  back  in  an  action  for  money  had 
and  received.  It  was  held  to  be  a  payment  not  voluntary,  but  by 
coercion,  the  defendant  having  the  plaintiff  in  his  power,  by  stop- 
ping his  goods.  It  does  not  appear  to  have  occurred  to  the  counsel 
or  the  court  that  it  was  a  case,  which  was  affected  by  the  decision 
in  Lindon  v.  Hooper. 

"  Trespass  would  have  been  an  appropriate  remedy  for  the  unlaw- 
ful seizure ;  but  after  payment,  assumpsit  was  also  appropriate. 
The  money  was  extorted.  The  payment  was  not  voluntary  in  any 
fair  sense  of  that  term;  and  the  defendant  had  no  just  title  to  retain 


FORMS   OF    PETITIONS.  375 


it.  If  money  is  voluntarily  paid  to  close  a  transaction,  without 
duress  either  of  person  or  goods,  the  legal  maxim,  volenti  non  fit 
injuria,  may  he  allowed  to  operate.  It  would  he  a  perversion  of 
the  maxim  to  apply  it  for  the  benefit  of  a  party  who  had  added 
extortion  to  unjustifiable  force  and  violence. 

•'  The  party  injured  often  finds  a  convenience  in  being  allowed  to 
select  one  of  several  concurrent  remedies.  In  the  case  under  con- 
sideration, replevin  would  have  restored  the  property  unlawfully 
seized.  But  to  procure  a  writ,  and  an  officer  to  serve  it,  would 
have  occasioned  delay,  which  might  have  subjected  the  plaintiff 
to  greater  loss  than  the  payment  of  the  money  demanded.  Besides, 
he  must  have  given  a  bond  to  the  officer  to  prosecute  his  suit,  and 
he  might  meet  with  difficulty  in  obtaining  sufficient  sureties.  Had 
he  brought  trespass,  several  months  might  have  elapsed  before  he 
could  have  obtained  a  final  decision ;  and  this  delay  might  have 
been  attended  with  serious  inconvenience.  By  the  course  pursued, 
these  difficulties  were  avoided.  Nor  is  the  defendant  placed  by  it 
in  an\-  worse  condition.  He  has  been  permitted  to  urge  in  his  de- 
fense  any  claim  of  right  under  the  corporation,  and  lie  is  liable  to 
pay  only  the  money  actually  received  by  him,  the  plaintiff  waiving, 
by  the  form  of  the  action,  damages  for  the  illegal  seizure." 

The  facts  in  the  above  case  were,  that  the  plaintiff  was  conduct- 
ing a  raft  down  the  Penobscot  river,  and  when  he  came  near  the 
boom  of  the  defendant,  which  was  erected  under  a  state  charter, 
he  was  unable  to  pass  it  through  the  passage-way  left  for  that  pur- 
pose; and,  by  force  of  the  wind  and  current,  it  was  forced  east- 
ward of  the  passage,  and  stopped  by  defendant's  boom.  The 
defendant  demanded  of  plaintiff  80.40,  being  the  regular  boomago 
for  the  raft,  which  plaintiff  refusing  to  pa}T,  the  defendant  detained 
the  raft  till  he  did  pay  the  sum  demanded.  The  action  was 
brought  to  recover  back  this  money  so  paid;  and  it  was  held 
mon<  y  UOl  paid  voluntarily. 

This  subject  was  well  considered  by  the  Supreme  Court  of 
in  .May  v.  Cincinnati,  1  Ohio  St.  208;  in  which,  alter  citing 
many  authorities,  n  is  said:  "This  unbroken  chain  of  authority 
oa  to  warrant  the  conclusion  thai  a  payment  of  money  upon 
an  illegal  or  unjust  demand,  when  the  party  is  advised  of  all  the 
fact-,  can  only  lie  considered  involuntary  when  it  is  made  to 
procure  the  i  of  the  person  or  property  of  the  party  from 

detention,  or  when  tin'  other  party  is  armed  with  apparent  author- 
ity \  '  ipon  either,  and  the  payment  is  made  to  prevenl  it. 
Bui  where  he  can  only  be  reached  by  a  proceeding  at  Jaw,  he  is 


376  FORMS   OF   PETITIONS. 


bound  to  make  his  defense  in  the  first  instance."  So  where  an 
assessment  was  made  to  improve  a  street,  and  the  parties  assessed 
paid  under  protest,  it  was  held  it  could  not  be  recovered  back  in 
this  form  of  action,  because  the  corporation  could  obtain  the  assess- 
ment only  by  an  action,  to  which  the  party  could  set  up  his  defense. 
City  of  Marietta  v.  Slocnm,  G  Ohio  St.  471. 

In  the  case  of  Atlec  v.  Backhouse,  3  Mee.  &  Wcls.  644,  Lord 
Abiuger,  C.  B.,  states  the  result  of  all  the  English  cases  to  be,  that 
in  all  cases  where  goods  of  the  party  have  been  wrongfully  seized 
or  detained  for  the  purpose  of  exacting  money,  he  is  entitled,  after 
payment  of  the  money,  to  bring  an  action  for  money  had  and  re- 
ceived to  try  the  right.  And  in  the  very  recent  case  of  Oates  v. 
Hudson,  5  Eng.  L.  &  Eq.  470,  the  rule,  as  laid  down  in  the  above 
case,  was  approved  by  the  whole  court.  Boston  and  Sandwich 
Glass  Co.  v.  The  City  of  Boston,  4  Met.  181.  In  this  last  case,  a 
tax  illegally  assessed,  having  been  paid  under  protest,  was  re- 
covered back,  because  the  collector  had  a  right  to  seize  property  in 
the  first  instance  without  resorting  to  an  action.  Cases  where  it 
has  been  held  the  money  was  paid  voluntarily,  and  could  not  be 
recovered  back  :  Brisbane  v.  Dacres,  5  Taunt.  143 ;  Wilson  v.  Boy, 
10  Ad.  &  EI.  82 ;  Elliot  v.  Swartwout,  10  Pet.  150 ;  Clark  v.  Duteher, 
9  Cowen,  G74  ;  Silliman  v.  Wing,  7  Hill,  159  ;  Abell  v.  Douglass, 
4  Denio,  308  ;  Eleetwood  v.  New  York,  2  Sandf.  S.  C.  475  ;  Balti- 
more v.  Lefferman,  4  Gill,  425;  Morris  v.  Baltimore,  5  Gill,  244; 
Eobinson  v.  Charleston,  4  Bich.  317  ;  Smith  v.  Beadfield,  27  Maine, 
145.  This  case  in  27  Maine,  145,  is  contrary  to  the  case  of  Boston 
and  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181.  The  court  seem  to 
put  the  case  on  the  ground  that  the  collector  made  no  threat  of 
seizure  before  payment.  This  is  surely  unnecessary,  when  the 
plaintiff  knew  it  was  his  duty  to  make  a  scizm-e  ;  it  is  certainly 
absurd  to  require  this  foolish  act  before  payment  can  be  made. 
The  last  case  is  rightly  decided.  Cadaval  v.  Collins,  6  N.  &  M. 
324 ;  Brown  v.  McKinally,  1  Esp.  279 ;  17  Mass.  461 ;  12  Pick.  206  ; 
4  lb.  361 ;  6  Conn.  223;  12  Pick.  7  ;  10  Conn.  127.  So  if  one  de- 
mands an  excess  of  fees.     2  N.  H.  241. 

Money  paid  on  an  illegal  contract. — The  rule  in  respect  of  money 
paid  on  illegal  contracts,  appears  in  general  to  be,  that  money  soj 
advanced  may  be  recovered  back  in  an  action  for  money  had  and 
received  while  the  contract  remains  executory,  because  a  violation 
of  the  law  is  thereby  prevented;  but  if  the  contract  be  executed, 
it  can  not  be  recovered  back.    Where  both  parties  are  in  pari  de- 


FORMS   OF    PETITIONS.  377 


lido,  in  such  a  case,  melior  est  conditio  defendentis ;  not  because  the 
defendant  is  more  favored,  but  because  the  plaintiff  must  draw  his 
justice  from  pure  fountains.  Buller  1ST.  P.  132  ;  per  Lord  Mansfield, 
C.  J..  Doug.  -±70  ;  Perkins  v.  Garvige,  15  Wend.  412. 

Where  one  knowingly  pays  money  on  an  illegal  consideration, 
he  is  particeps  criminis,  and  there  is  no  reason  he  should  have  his 
money  again,  for  he  parted  with  it  freely,  and  volenti  non  fit  in- 
juria. 

But  where  contracts  or  transactions  are  prohibited  by  positive 
statute,  for  the  sake  of  protecting  one  set  of  men  from  another  set 
of  men.  the  one,  from  their  situation  and  condition,  being  liable  to 
be  oppressed  or  imposed  upon  by  the  other,  there  the  parties  are 
not  in  pari  delicto  ;  and  in  furtherance  of  these  statutes,  the  person 
injured,  after  the  transaction  is  finished  and  completed,  may  bring 
his  action,  and  defeat  the  contract ;  the  object  of  the  statute  being' 
to  protect  the  plaintiff.  Buller  N.  P.  131 ;  1  Leigh  N.  P.  66,  per 
Lord  Mansfield,  0-  J.;  Browning  r.  Morris,  Cowper,  792.  Where 
A,  in  consideration  of  £200  paid  by  B,  gave  a  bond  for  the  pay- 
ment of  an  annuity  to  the  latter  of  100  guineas,  until  the  hop 
duties  should  amount  to  a  certain  sum  in  one  year,  on  an  action 
to  recover  back  the  £200,  it  was  held  a  wager  and  void,  and  the 
money  was  recovered  back.  Tappenden  r.  Randall,  2  Bos.  &  Pul. 
4(17  ;  Atherfbrd  v.  Beard.  2  Term,  610;  Shirley  v.  Sankey,  2  Bos. 
&  Pul.  130.  Contracts  between  lottery-office  keepers,  who  cn- 
tered  into  an  agreement  about  the  drawing  of  tickets,  the  parties 
Aver.-  held  to  be  in  pari  delicto.  Lowry  v.  Bourdieu,  Doug.  467 ; 
Howson  v.  Hancock,  8  Term,  575  ;  Hastelow  v.  Jackson,  8  B.  &  C. 
225  :  S.  C,  15  Eng.  C.  L.  205;  Williams  v.  Hedley,  8  East,  378; 
Thistlewood  r.  Cracroft,  1  M.  &  S.  500;  Stokes  v.  Twitehen,  8 
Taunt.  492;  B.C.,  4  Eng.  C.  L.  183;  Clayton  r.  Lilly,  4  Taunt, 
]<i.").  Money  paid  on  an  agreement  entered  into  on  Sunday,  may 
be  recovered  hack-,  so  long  as  the  contract  remains  executory; 
otherwise,  if  the  agreement  has  been  executed.  Brown  v.  Tim- 
many,  20  Ohio.  81  :  Worcester  r.  Baton,  11  Mass.  376.  Illegal  in- 
terest paid  may  he  recovered  hack  where  it  is  illegal  to  lake  it. 
Boardman  v.  Roe,  13  Mass.  105;  Bond  v.  Bays,  12  [b.  35;  Wheaton 
r.  Eibbard,  20  Johns.  290;  Bearce  v.  Baratow,  9  Mass.  48. 

.Money  fairly  paid  over  to  the  winner  in  ease  of  an  illegal  and 
void  wager,  can  doI  be  recovered  back.  Perkins  v.  Eaton,3  X.  II. 
152  :  R«i8l  v.  Gott,  (.i  Oow.  169;  .M-<  lullnm  v.  Gkrarlay,  8  Johns.  1  17; 
Living  ton  r.  Wootan,  1  N".  &  M.cC.  178.  Aliter,  if  the  money  is 
in  the  hands  oi  a  stake-holder,  or  if  he  pay  it  over  after  ootice  to 


378  FORMS   OF   PETITIONS. 


detain  it.  Vischer  v.  Yates,  11  Johns.  23;  Perkins  v.  Hyde, 
(i  Yerger,  228;  3  X.  E.  152;  1  K  &  McC.  178;  Jacobs  v.  Walton, 

1  liar.  496.  Where  the  parties  are  in  pari  delicto.  Greenwood  v. 
Curtis,  6  Mass.  381;  Barnard  v.  Crane,  I  Tyler,  457  ;  Burt  v.  Place, 
6  Cow.  431;  Pearson  v.  Lord,  G  Mass.  84;  Babcoek  v.  Thompson, 
3  Pick.  44G;  Merwin  v.  Huntington,  2  Conn.  209;  Best  v.  Strong, 

2  Wend.  319;  Groton  v.  Waldoborough,  11  Maine,  30G;  Denny  v. 
Lincoln,  5  Mass.  3S5. 

Money  paid  on  legal  process. — Money  paid  on  a  judgment  that  is 
afterwards  reversed  or  vacated,  may  be  recovered  back  in  this 
action.  Homer  v.  Barrett,  2  Boot,  156 ;  Duncan  v.  Kirkpatrick, 
13  S.  &  B.  292;  Sturges  v.  Allis,  10  Wend.  354;  Duncan  v.  Ware, 
5  Stew.  &  Port.  119  ;  Green  v.  Stone,  1  Har.  &  J.  405  ;  Clark  v. 
Penney,  G  Cow.  297;  Jamaica  v.  Guilford,  2  Chip.  103;  Dennett 
v.  Nevers,  7  Greenl.  399.  So  money  paid  on  an  execution  issued 
on  a  satisfied  judgment,  Wisner  v.  Bulkley,  15  Wend.  321 ;  More 
v.  Trumhour,  5  Cow.  488 ;  can  not  be  recovered  from  assignee  of 
judgment.  Lyman  v.  Edwards,  2  Day,  153;  Horn  v.  Johns, 
2  Munf.  272. 

But  where  the  judgment  not  void,  remains  in  force,  money  paid 
on  it  can  not  be  recovered  back.  Munson  v.  Bacon,  1  Boot,  210; 
Morton  v.  Chandler,  7  Greenl.  45 ;  Loring  v.  Mansfield,  17  Mass. 
394 ;  Carter  v.  Canterbury,  3  Conn.  4G1 ;  Homer  v.  Fish,  1  Pick. 
439  ;  Peek  v.  Woodbridge,  3  Day,  3G  ;  Cobb  v.  Curtis,  8  Johns. 
470;  White  v.  Ward,  9  Johns.  232.  It  matters  not  how  false  in 
fact  the  recovery  may  be.  Holden  v.  Curtis,  2  N.  H.  61.  Pay- 
ments not  credited  on  a  note,  and  not  allowed  in  entering  up  the 
judgment,  can  not  be  recovered  back ;  the  judgment  being  con- 
clusive evidence  on  what  was  due.  Loring  v.  Mansfield,  17  Mass. 
394 ;  De  Sylva  v.  Henny,  3  Porter,  132  ;  7  Mass.  24 ;  Tilton  v.  Gor- 
don, 1  K  H.  33 ;  12  Mass.  271 ;  16  Mass.  306. 

In  other  cases. — Where  one  receives  the  money  of  another  for  a 
particular  purpose,  and  applies  it  to  his  own  use,  or  refuses  to  ap- 
ply as  ordered,  it  may  be  recovered  back  in  this  form  of  action. 
Wales  v.  Wetmore,  3  Day,  252;  MeNeilly  v.  Richardson,  4  Cow. 
607  ;  Dumond  v.  Carpenter,  3  Johns.  783 ;  Eastman  v.  Hodges, 
1  Chip.  101  ;  Guthrie  v.  Hyatt,  1  Har.  44G. 

If  an  agent  receive  money  to  which  his  principal  has  no  right, 
he  can  not  pay  it  over  to  him  after  notice;  if  he  does,  he  still  re- 
mains liable  for  it;  if  he  pays  it  over  before  notice  not  to  do  so, 


FORMS   OP    PETITIONS.  379 


the  suit  can  not  be  against  him,  but  against  the  principal.  Garland 
v.  Salem  Bank,  9  Mass.  408  ;  Trye  v.  Lockwood,  4  Cow.  454 ; 
Fowler  r.  Shearer,  7  Mass.  14;  Dickens  v.  Jones,  6  Terg.  483; 
Elliott  v.  Swartwout,  10  Peters,  137;  Pool  v.  Adkinson,  1  Dana. 
117 ;  Potter  v.  Bemis,  1  Johns.  515 ;  United  States  v.  Buford, 
3  Peters,  28 ;  Hefferman  v.  Grymes,  2  Leigh,  512. 

It  lies  against  an  officer,  who  receives  money  on  execution. 
Armstrong  v.  Garrow,  6  Cow.  465  ;  Overton  v.  Hudson,  2  Wash.  192. 
If  a  public  agent  receives  money  from  the  government  to  be 
paid  on  a  particular  claim  or  to  a  particular  person,  and  fails  so  to 
do,  the  party  to  whom  he  ought  to  have  paid  it,  may  sue  the  agent 
for  it  in  this  form  of  action.  Freeman  v.  Otis,  9  Mass.  272 ;  Chap- 
man r.  Williams,  7  liar.  &  J.  157  ;  Arnold  v.  Lyman,  17  Mass.  400  ; 
Owings  v.  Owings,  1  Har.  &  Gill,  4S4  ;  Hall  v.  Marston,  17  Mass. 
575 ;  AVeston  v.  Barker,  12  Johns.  276 ;  Stoekdon  v.  Bayless, 
2  Bibb,  62. 

A  stole  property  and  sold  it  to  B  for  money  ;  on  being  arrested 
for  the  theft  by  the  owner  of  the  property,  A  gave  him  this  money. 
B  recovered  the  money  of  the  owner  of  the  property  without  prov- 
ing previous  demand.     Wiggin  v.  Foss,  4  £T.  H.  294. 

This  abstract  of  the  law  on  the  common  counts  will  enable  one 
to  obtain  a  general  notion  of  their  use  and  application.  Still  it  is 
necessary  for  the  student  to  study  the  law  in  works  devoted  to 
their  elucidation,  and  the  numerous  cases  which  have  been  decided 
in  relation  to  them.  The  common  counts  were  a  necessity  under 
the  old  practice,  and  equally  so  under  the  new.  They  are  not 
liable  to  technical  difficulties,  and  all  variance  is  avoided  on  the 
trial.  The  sum  claimed  being  stated,  and  what  it  is  for,  any  accounts 
may  be  gone  into  in  order  to  ascertain  whether  at  the  time  named, 
there  was  any.  and  if  any.  what  balance  due  growing  out  of  all 
previous  transactions  coming  in  under  the  particular  count. 

There  was  a  practice  of  suing  on  the  common  counts  and  offer- 
ing a  note  or  bill  in  evidence.  I  don't  think  that  can  be  done  now. 
Bui  when  the  note  is  only  conditional  payment,  and  lias  not  been 
paid,  it  would  seem  an  action  might  bo  brought  on  the  original 
cause  of  action.  The  code  does  not  change  tin-  law  as  t<>  the  right 
of  parties;  hence,  when  before  the  code,  the  note  or  bill  was  not 
payment  in  fact,  and  has  DOl  been  paid,  lean  see  no  reason  why 
a  suit  may  not  !>'•  broughl  on  the  original  cause  of  action.     This 

Class   Of  cases   arise   oftenesl    on   a  sale  of  goodsj  am!  a  note  at  the 

time  or  afterward  is  given ;  if  not  paid,  the  plaintiff  has  his  elec- 
tion to  8Ue  on  the  QOte,  or  lor  goods  sold  and  delivered.      The  codo 


380  FORMS   OP    PETITIONS. 


has  not  changed  the  legal  effect  of  such  transaction,  and  hence 
such  an  unpaid  note  is  no  payment  of  the  contract  of  sale. 

But  if  fche  party  relies  on  his  note  to  prove  his  cause  of  action, 
he  must  declare  on  the  note  or  bill;  he  can  not  declare  on  common 
counts  and  prove  them  hy  the  note.  A  note  was  held  evidence  of 
money  had  and  received  :  it  is  so  no  longer;  if  relied  on,  it  must 
he  declared  on. 

I.  Respecting  Real  Property. 

1.  FOR   REAL   ESTATE   SOLD. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     ,  (this 

should  be  the  date  of  the  debts  becoming  due,  so  as  after  that  to  carry 
interest,')  was  indebted  to  the  said  plaintiff  in  the  sum  of  $  , 
(this  should  be  the  true  amount  claimed  without  interest,)  for  certain 
real  estate  before  that  time  bargained,  sold,  and  conveyed  (if  it  has 
been  conveyed  or  a  deed  tendered)  by  the  said  plaintiff  to  the  said 
defendant  at  his  special  instance  and  request,  and  which  said  sum 
of  money  the  said  plaintiff  avers  was  then  due  and  payable ;  yet 
the  said  defendant,  though  often  requested,  has  not  paid  said  sum 
of  money,  nor  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  said  sum  of  $  ,  together  with  interest  thereon  from 
the  said        day  of  ,  a.  d.  18     ,  (the  day  the  indebtedness  be- 

came piayable.) 

2.  FOR   LEASEHOLD    ESTATE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant  on  the         day  of  ,  A.  D.  18     , 

was  indebted  to  the  said  plaintiff  in  the  sum  of  $  ,*  for  certain 
leasehold  premises  with  the  appurtenances,  before  that  time  bar- 
gained, sold,  and  assigned  by  the  said  plaintiff  to  the  said  defend- 
ant, at  his  special  instance  and  request,  for  the  remainder  of  a 
certain  term  of  years  then  to  come  and  unexpired  therein,  and 
which  said  sum  of  money  the  said  plaintiff  avers  was  then  due 
and  payable  ;  yet  the  said  defendant,  though  often  requested,  has 
not  paid  said  sum  of  money,  nor  any  part  thereof. 

Whereof  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        .    day  of            ,  a.  d.  18     . 


FORMS   OF   PETITIONS.  381 


3.    FOR   GOOD   WILL    OF    A   BUSINESS. 

(Follow  the  last  to  *,  then  add ;)  for  certain  good  will  of  a  certain 
trade  and  business  of  the  said  plaintiff,  before  then  relinquished 
and  given  up  by  the  said  plaintiff  to  and  in  favor  of  the  said  de- 
fendant, and  at  his  special  instance  and  request,  and  which  said 
sum  of  money  the  said  plaintiff  avers  was  then  due  and  payable ; 
yet  the  said  defendant,  etc.  (as  in  the  last.) 

4.  FOR  GOOD  WILL  OF  A  PUBLIC  HOUSE. 

(Follow  2  to  *,  then  proceed :)  for  the  good  will  of  a  certain  public 
house,  commonly  called  or  known  by  the  name  or  sign  of  , 

and  the  trade  and  business  of  him,  the  said  plaintiff,  of  a  publican 
therein,  before  that  time  relinquished  and  given  up  by  the  said 
plaintiff  to  and  in  favor  of  the  said  defendant,  and  at  his  special 
instance  and  request,  and  which  said  sum  of  money  the  said  plaint- 
iff avers  was  then  due  and  payable ;  yet  the  said  defendant,  etc. 
(as  in  1.) 

5.  FOR  FIXTURES  LEFT  ON  A  PLACE. 

(Folloic  2  to  *,  then  proceed :)  for  so  much  money  before  that  time 
and  then  due  and  payable  from  the  said  defendant  to  said  plaintiff, 
for  the  relinquishing  and  giving  up  of  certain  buildings,  erections, 
and  improvements,  before  then  made  by  the  said  plaintiff  upon 
certain  lands,  by  the  said  plaintiff  before  that  time  quitted  and 
given  up  to  and  in  favor  of  the  said  defendant,  at  his  special  in- 
stance and  request,  and  which  said  sum  of  money  the  said  plaint- 
iff avers  was  then  due  and  payable ;  yet  the  said  defendant,  etc. 
(as  in  1.) 

G.    FOR   USE    AND   OCCUPATION. 

(Follow  2  to  *,  then  proceed:)  for  the  use  and  occupation  of  cer- 
tain real  estate,  with  the  improvements  thereon  of  the  said  plaint- 
iff, by  the  said  defendant  and  at  his  special  instance  and  request, 
and  by  the  sufferance  and  permission  of  the  said  plaintiff,  for  a 
long  space  of  time  before  then  elapsed,  had,  held,  used,  and  occu- 
pied, and  which  said  sum  of  money  the  plaintiff  avers  was  then 
due  and  payable  ;  and  yet  the  said  defendant,  etc.  (as  in  1.) 

Note. — It  is  unnecessary  to  state  where  the  premises  lie,  or  the 
term  of  the  demise.  The  obligation  to  pay  arises  from  the  occupa- 
tion with  plaintiffs  sufferance.  G  East,  248;  8  Term,  327  ;  1G  East, 
33;  2  B.  .V  A.  119. 

To  authorize  this  general  form  of  declaring,  the  facts  must  show 
expressly  or  impliedly  that  the  defendant  occupies  as  tenant  of  the 


382  FORMS   OP   PETITIONS. 


plaintiff;  for  if  ho  occupies  adversely  to  the  plaintiff,  there  is  no 
liability  or  contract  to  pay  rent,  The  remedy  is  trespass  or  a  suit 
to  obtain  possession.  Butler  v.  Cowles,  4  Ohio,  205;  Sinnard  v. 
McBride,  3  lb.  264. 

As  to  rights  of  landlord  and  tenant  in  Ohio,  vide  Case  v.  Harte, 
11  Ohio,  364;  Foote  v.  Cincinnati,  11  lb.  408;  Boyd's  Lessee  v. 
Talbert,  12  lb.  212  ;  Bridgman  v.  Wells,  13  lb.  443. 

7.    USE    OF   PASTURE,   ETC. 

(Follow  2  to  *,  then  proceed :)  for  the  use  of  certain  pasture  land 
of  the  said  plaintiff,  and  the  eatage  of  the  grass  thereon  growing, 
by  him,  the  said  plaintiff,  before  that  time  let  to  the  said  defend- 
ant, at  his  special  instance  and  request,  and  by  the  said  defend- 
ant, according  to  such  letting,  had  and  used  in  and  for  the  depas- 
turing of  cattle,  horses,  sheep,  and  other  animals,  for  a  long  time 
before  then  elapsed,  and  which  said  sum  of  money  the  said  plaint- 
iff avers  was  then  due  and  payable  ;  yet  the  said  defendant,  etc. 
(as  in  1.) 

8.    UNFURNISHED   LODGINGS. 

(Follow  2  to  *,  then  proceed ;)  for  the  use  and  occupation  of  cer- 
tain rooms  and  apartments  of  the  said  plaintiff,  in  and  a  parcel  of 
a  certain  dwelling-house,  by  the  said  defendant,  and  at  his  special 
instance  and  request,  and  by  the  sufferance  and  permission  of  the 
said  plaintiff,  for  a  long  space  of  time  before  then  elapsed,  and 
which  said  sum  of  money  the  said  plaintiff  avers  was  then  due  and 
payable;  and  yet  the  said  defendant,  etc.  (as  in  1.) 

9.    FURNISHED    LODGINGS. 

(Follow  2  to  *,  then  proceed  .•)  for  the  use  and  occupation  of  cer- 
tain rooms  and  apartments  of  the  said  plaintiff,  in  and  a  parcel  of 
a  certain  dwelling-house,  by  the  said  defendant,  and  at  his  special 
instance  and  request,  and  by  the  sufferance  of  the  said  plaintiff, 
for  a  long  space  of  time  before  then  elapsed,  had,  held,  used,  and 
occupied,  together  with  certain  household  furniture,  linen,  and 
other  necessaries,  goods  and  chattels  of  the  said  plaintiff  therein 
being,  and  which  said  sum  of  money  the  said  plaintiff  avers 
was  then  due  and  payable  ;  and  yet  the  said  defendant,  etc.  (as 
in  1.) 

Note. — The  same  form  can  easily  be  adapted  for  use  of  offices 
and  rooms  in  other  buildings. 


FORMS   OP   PETITIONS.  383 


10.    FURNISnED    LODGINGS   WITH    BOARD. 

(Follow  2  to  *,  then  proceed .)  for  the  use  and  occupation  of  cer- 
tain rooms,  apartments,  and  furniture  of  the  said  plaintiff,  before 
that  time  used  and  enjoyed  by  the  said  defendant,  at  his  special 
instance  and  request,  and  by  the  permission  of  the  said  plaintiff, 
and  for  certain  meat,  drink,  fire,  candles,  attendance,  chattels,  and 
other  necessaries,  by  the  said  plaintiff  before  that  time  found  and 
provided  for  the  said  defendant,  at  his  special  instance  and  request, 
and  which  said  sum  of  money  the  said  plaintiff  avers  was  then  due 
and  payable;  yet  the  said  defendant,  etc.  (as  in  1.) 

11.    FOR   WAREHOUSING   GOODS. 

(Follow  2  to  *,  then  proceed:')  for  warehouse  room  by  the  said 
plaintiff  before  that  time  found  and  provided,  for  the  storing  and 
keeping  of  certain  goods  and  chattels  before  then  stowed  in  cer- 
tain warehouses  and  premises  of  the  plaintiff,  for  the  said  defend- 
ant, and  at  his  special  instance  and  request,  and  which  said  sum 
of  money  the  said  plaintiff  avers  was  then  due  and  payable;  and 
yet  the  said  defendant,  etc.  (as  in  1.) 

12.    FOR   MOORAGE    OF    SHIPS. 

(Follow  2  to  #,  then  proceed :)  for  the  mooring  and  fastening  of  a 
certain  ship  (or,  steamboat,  or,  flat-boat,  etc.)  called  the  , 

to  a  certain  wharf  and  landing  of  the  said  plaintiff,  at  , 

on  the  bank  of  the  Ohio  river,  for  a  long  space  of  time  then  elapsed, 
by  the  said  defendant,  at  his  special  instance  and  request,  and  by 
the  permission  of  the  said  plaintiff,  and  which  said  sum  of  money 
the  -aid  plaintiff  avers  was  then  due  and  payable;  yet  the  said 
defendant,  etc.  (as  in  1.) 

13.    FOR   TOLLS   FOR   USE   OP   MARKET. 

(Follow  2  to  *,  then  proceed:)  for  divers  reasonable  tolls  before 
thai  time  and  then  due.  and  of  right  payable  by  and  from  the  said 
defendant  to  the  same  plaintiff,  as  proprietor  of  a  certain  market, 
situate  in  the  said  town  (or  city),  of  which  the  said  defendant  in- 
curred and  b<  came  liable  to  pay  to  the  said  plaintiff,  by  reason  of 
his,  Baid  defendant's,  having  occupied,  with  the  permission  of  said 
plaintiff,  a  stall  therein,  and  brought  into  the  same  and  sold  therein 
various  goods  and  chattels  of  his.  the  said  defendant,  and  which 
Baid  Bum  of  money  the  said  plaintiff  avers  was  then  due  and  pay- 
able ;  yet  the  said  defendant,  etc.  (as  in  1.) 


38  1  FORMS   OP   PETITIONS. 


II.  Respecting  Personal  Property. 

14.  FOR  GOODS  SOLD  AND  DELIVERED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     , 

was  indebted  to  the  said  plaintiff  in  the  sum  of  $  ,*  for  divers 
goods,  wares,  merchandise,  and  chattels  (or,  when  for  live  animals, 
horses,  marcs,  geldings,  bulls,  cows,  oxen,  sheep,  hogs,  cattle,  etc., 
as  the  case  may  be,)  by  the  said  plaintiff  before  that  time  sold  and 
delivered  to  the  said  defendant,  at  his  special  instance  and  request, 
and  which  said  sum  of  money  the  said  plaintiff  avers  was  then  due 
and  payable;  and  yet  the  said  defendant,  though  often  requested, 
has  not  paid  said  sum  of  money,  nor  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

15.    FOR   GOODS    SOLD   TO   DEFENDANT,    AND    DELIVERED     TO   A   THIRD 

PERSON. 

(Folloio  14  to  *,  then  proceed :)  for  divers  goods,  wares,  and  mer- 
chandise (or  horses,  etc.,)  by  the  said  plaintiff,  before  that  time  bar- 
gained and  sold  to  the  said  defendant,  and  under  and  by  virtue  of 
such  bargain  and  sale  delivered  to  one  E  F,  at  the  special  instance 
and  request  of  the  said  defendant,  and  which  said  sum  of  money 
the  plaintiff  avers  was  then  due  and  payable ;  and  yet  the  said 
defendant,  etc.  (as  in  14.) 

16.    FOR   A   CROP   OF    GRASS,    ETC. 

(Follow  14  to  *,  then  proceed :)  for  a  certain  crop  of  grass  (or, 
wheat,  corn,  turnips,  potatoes,  etc.,)  of  the  said  plaintiff,  before  that 
time  bargained  and  sold  by  the  said  plaintiff  to  the  said  defend- 
ant, and  at  his  special  instance  and  request,  and  by  the  said  de- 
fendant before  that  time  accepted,  cut  down,  and  carried  away  (or, 
if  turnips,  potatoes,  apples,  etc.,  gathered  for  cut  down,)  and  which 
said  sum  of  money  the  said  plaintiff  avers  was  then  due  and  pay- 
able ;  yet  the  said  defendant,  etc.  (as  in  14.) 

17.    FOR   NECESSARIES   FOR   DEFENDANT. 

(Follow  14  to  *,  then  proceed :)  for  meat,  drink,  washing,  lodging, 
and  other  necessaries,  by  the  said  plaintiff  before  that  time  found 
and  provided  for  the  said  defendant,  at  his  special  instance  and 


FORMS   OP    PETITIONS.  385 


request,  and  which  said  sum  of  money  the  said  plaintiff  avers  was 
then  due  and  payable ;  yet  the  said  defendant,  etc.  (as  in  14.) 

18.    FOR   NECESSARIES   FOR   A   THIRD    PERSON. 

(Follow  14  to  *,  then  proceed :)  for  meat,  drink,  washing,  lodging, 
and  other  necessaries,  by  the  said  plaintiff  before  that  time  found 
and  provided,  at  the  request  of  the  said  defendant,  for  one  E  F,  (and 
divers  other  persons,  if  more  than  one,)  and  which  said  sum  of 
money  the  said  plaintiff  avers  was  then  due  and  payable;  yet 
the  said  defendant,  etc.  (as  in  14.) 

19.    FOR   HORSE    FEED   AND   STABLING. 

(Folloio  14  to  *,  then  proceed  .•)  for  horse  feed,  stabling,  care,  and 
attendance,  by  the  said  plaintiff  before  that  time  found,  and  pro- 
vided, and  bestowed,  for  the  feeding  and  keeping  of  divers  horses, 
(or,  if  cattle,  describe  them,)  of  and  for  the  said  defendant,  at  his 
request,  and  which  said  sum  of  money  the  said  plaintiff  avers  was 
then  due  and  payable ;  yet  the  said  defendant,  etc.  (as  in  14.) 

20.    FOR   PASTURING   CATTLE,    ETC. 

(Follow  14  to  *,  then  proceed :)  for  the  agisting,  depasturing,  and 
feeding  of  divers  cattle,  (or,  horses,  sheep,  etc.,)  by  the  said  plaint- 
iff before  that  time  agisted,  depastured,  and  fed,  in  certain  pastures 
and  premises  of  the  said  plaintiff  for  the  said  defendant,  at  his  re- 
quest, and  which  said  sum  of  money,  the  said  plaintiff  avers  was 
then  due  and  payable  ;  yet  the  said  defendant,  etc.  (as  in  14.) 

21.    FOR    HIRE    OF    GOODS,    HORSES,    SHIPS,    ETC. 

(Follow  14  to  *,  then  proceed.)  for  the  use  and  hire  of  divers 
horses,  (or,  oxen,  cows,  wagons,  carriages,  boats,  skiffs,  steamboats, 
Is,  furniture,  plate,  etc.,)  goods  and  chattels,  by  the  said 
plaintiff  before  that  time  let  to  hire  and  delivered  to  the  said  de- 
fendant, at  his  request,  and  by  the  said  defendant,  under  said  let- 
ting to  hire,  before  then  had  and  used,  and  which  said  sum  of 
money  the  said  plaintiff  avers  was  then  due  and  payable  ;  yet  the 
said  defendant,  etc.  (as  in  14.) 

22.    FOR   COVERING    MARES. 

(Follovj  14  to  *,  then  proceed  :)  for  the  use  of  the  stallion  of  the 
said  plaintiff,  before  thai  time  bad  and  used,  hy  the  permission  of 
the  said  plaintiff,  in  and   lor  covering  a  certain  mare,  (or,  certain 
vol.  i — 25 


386  FORMS    OF   PETITIONS. 


marcs,)  of  and  for  the  said  defendant,  and  at  his  request,  and  which 
said  sum  of  money  the  said  plaintiff  avers,  was  then  due  and  pay- 
able; and  yet  the  said  defendant,  etc.  (as  in  14.) 

Note. — The  above  form  will  answer  for  putting  defendant's  cow 
to  plaintiff's  bull,  by  only  substituting  bull  for  stallion,  and  cow  for 
mare. 

23.    FOR   FREIGHT. 

(Follow  14  to  *,  then  proceed:)  for  certain  freight  before  that 
time  and  then  due  and  payable  from  the  said  defendant  to  the  said 
plaintiff,  for  the  carriage  and  conveyance  of  certain  goods,  wares, 
merchandise,  and  chattels,  by  the  said  plaintiff  before  that  time 
carried  and  conveyed  in  and  upon  the  vessel,  (or,  vessels,  steam- 
boats, etc.,)  from  divers  ports  and  places  to  divers  other  ports  and 
places,  and  thei'e,  at  the  latter  places  and  ports,  delivered  by  the 
said  plaintiff,  for  the  said  defendant,  at  his  request,  and  which  said 
sum  of  money,  the  said  plaintiff  avers  was  then  due  and  payable ; 
yet  the  said  defendant,  etc.  (as  in  14.) 

24.    FOR   PASSAGE   ON    BOARD    SHIP,    ETC. 

(Follow  14  to  *,  then  proceed:)  For  the  passage  of  the  said  defend- 
ant (or,  of  divers  seamen,  boatmen,  before  then  carried  and  con- 
veyed by  the  said  plaintiffs)  in  and  on  board  of  a  certain  ship  or 
vessel,  (or,  steamboat,  or,  steamship,)  whereof  the  said  plaintiff  was 
master  and  commander,  from  divers  ports  and  places  to  divers 
other  ports  and  places,  and  at  the  request  of  the  said  defendant, 
and  which  said  sum  of  money  the  said  plaintiff  avers  was  then  due 
and  payable  ;  yet  the  said  defendant,  etc.  (as  in  14.) 

III.  Respecting  Personal  Services. 

25.   FOR  WAGES. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  was 

indebted  to  said  plaintiff  in  the  sum  of  $  ,*  for  the  wages  or  salary 
of  the  said  plaintiff,  before  that  time  and  then  due  and  payable 
from  the  said  defendant  to  the  said  plaintiff,  for  the  services  of  the 
said  plaintiff,  by  him  before  then  performed,  as  the  hired  servant 
of  and  for  the  said  defendant,  and  at  his  request,  and  which  said 
sum  of  money  the  said  plaintiff  avers  was  then  due  and  payable ; 
yet  the  said  defendant,  though  often  requested,  hath  not  paid  said 
sum  of  money,  nor  any  part  thereof. 


FORMS   OP   PETITIONS.  387 


Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said         day  of  ,  a.  d.  18     . 

26.    FOR   WAGES   AS    A   SAILOR   V.    MASTER. 

(Follow  25  to  *,  then  proceed :)  for  the  wages  of  the  said  plaintiff, 
before  that  time  and  then  due  and  payable  from  the  said  defendant 
to  the  said  plaintiff,  for  the  service  of  the  said  plaintiff,  before  then 
performed,  at  the  request  of  the  said  defendant,  as  a  mariner  of 
and  belonging  to  a  certain  vessel  or  ship,  (or,  steamboat,)  whereof 
the  said  defendant,  during  the  time  of  such  service  was  master  and 
commander,  and  which  said  sum  of  money  the  said  plaintiff  avers 
was  then  due  and  payable  ;  yet  the  said  defendant,  etc.  (as  in  25.) 

27.    FOR  WAGES   AS   MASTER. 

(Follow  25  to  *,  then  proceed :)  for  the  wages  of  the  said  plaintiff, 
due  and  owing  for  his  service,  before  then  performed  by  him,  the 
said  plaintiff,  as  master  and  commander  of  a  certain  ship  or  vessel, 
(or,  steamboat,)  for  the  said  defendant,  and  at  his  request,  and 
which  said  sum  of  money  the  said  plaintiff  avers  was  then  due  and 
payable ;  yet  the  said  defendant,  etc.  (as  in  25.) 

28.    FOR   SERVICES   AS   ATTORNEY. 

(Follow  25  to  *  then  proceed:)  for  the  work,  labor,  care,  diligence, 
and  attendance  of  the  said  plaintiff,  by  the  said  plaintiff  before 
that  time  performed  and  bestowed,  as  the  attorney  and  solicitor 
of  and  for  the  said  defendant,  and  upon  his  request,  in  and  about 
prosecuting  and  defending  certain  actions,  and  performing  other 
business  as  such  attorney  and  solicitor  for  the  said  defendant  at  his 
like  request;  and  also  for  his  said  plaintiff's  services  as  attorney 
in  drawing  certain  deeds,  contracts,  and  other  writings,  and  advice 
and  counsel  given  by  the  said  plaintiff,  as  such  attorney  to  and  for 
the  said  defendant  and  about  his  business,  and  at  his  like  request, 
and  which  said  sum  of  money  the  said  plaintiff  avers  was  then  due 
and  payable ;  yet  the  said  defendant,  etc.  (as  in  25.)  , 

29.    FOR   SERVICES    IN    GENERAL. 

(Follow  25  to  *,  then  proceed:)  for  the  work  and  labor,  care  and 
diligence  of  the  said  plaintiff,  by  the  said  plaintiff  before  thai  time 
performed  and  bestowed,  aboul  the  business  of  the  said  defendant, 
and  forthesaid  defendant,  and  at  bis  request;  and  also  for  divers 

materials,  and  other  necessary  things,  by  the  said  plaintiff,  beforo 


388  FORMS   OP   PETITIONS. 


that  time  found  and  provided,  in  and  .about  that  work  and  labor 
for  the  said  defendant,  and  at  his  like  request,  and  which  said  sum 
of  money  the  said  plaintiff  avers  was  then  due  and  payable;  yet 
the  said  defendant,  etc.  (as  in  25.) 

30.    FOR   WORK    WITH    HORSES,    ETC. 

(Follow  25  to  *,  then  proceed :)  for  the  work  and  labor,  care,  and 
diligence  of  the  said  plaintiff,  before  that  time  performed  and  be- 
stowed, by  the  said  plaintiff  and  his  servants,  and  with  horses, 
carts,  and  carriages,  (or,  lighters,  boats,  or  other  vessel,)  goods  and 
chattels,  in  and  about  the  business  of  the  said  defendant,  and  for 
the  said  defendant,  and  at  his  request,  and  which  said  sum  of  money 
the  said  plaintiff  avers  was  then  due  and  payable  ;  yet  the  said 
defendant,  etc.  (as  in  25.) 

31.    FOR    CARRIAGE    OF    GOODS   BY    LAND. 

(Follow  25  to  *,  then  proceed .-)  for  the  carriage  and  conveyance 
of  divers  goods,  wares,  merchandise,  and  chattels  by  the  said 
plaintiff,  before  that  time  carried  and  conveyed,  in  certain  carts, 
wagons,  and  other  carriages,  for  the  said  defendant,  and  at  his  re- 
quest, and  which  said  sum  of  money  the  said  plaintiff  avers  was 
then  due  and  payable;  yet  the  said  defendant,  etc.  (as  in  25.) 

32.     AS   AGENT   AND   FOR   COMMISSION. 

(Follow  25  to  *,  then  proceed :)  for  the  work  and  labor,  care,  and 
diligence,  and  journeys  of  the  said  plaintiff,  by  the  said  plaintiff 
before  that  time  performed  and  bestowed,  as  the  agent  of  and  for 
the  said  defendant,  and  on  his  retainer,  and  for  a  certain  commis- 
sion and  reward  due  and  payable  from  the  said  defendant  to  the 
said  plaintiff,  in  respect  thereof,  and  which  said  sum  of  money  the 
said  plaintiff  avers  was  then  due  and  payable ;  yet  the  said  defend- 
ant, etc.  (as  in  25.) 

33.    AS    A    FACTOR. 

(Follow  25  to  *,  then  proceed .-)  for  the  work  and  labor,  care  and 
diligence,  journeys  and  attendance  of  the  said  plaintiff,  by  him  the 
said  plaintiff  before  that  time  performed  and  bestowed,  as  the 
factor  and  agent  of  the  said  defendant,  in  and  about  the  selling 
and  disposing  of  divers  goods,  merchandise,  and  chattels,  and  in 
and  about  other  business  of  the  said  defendant,  and  for  the  said 
defendant,  and  at  his  request,  and  which  said  sum  of  money  the 
said  plaintiff  avers  was  then  due  and  payable ;  yet  the  said  defend- 
ant, etc.  (as  in  25.) 


FORMS    OF    PETITIONS.  389 


34.    AS   AN   INSURANCE    BROKER. 

{Follow  25  to  *.  £Aen  proceed :)  for  the  work  and  labor,  care,  and 
diligence  of  the  said  plaintiff,  by  him  before  that  time  performed 
and  bestowed,  in  and  about  the  writing,  drawing,  and  making  out 
of  divers  policies  of  insurance  of  divers  ships,  vessels,  steamboats, 
goods,  merchandise,  and  chattels,  before  that  time  written,  drawn, 
and  made  out  by  the  said  plaintiff,  as  an  insurance  broker,  and  in 
and  about  the  causing  and  procuring  divers  persons  to  insure 
divers  sums  of  money  upon  the  said  ships,  vessels,  and  steamboats, 
goods,  merchandise,  and  chattels,  at  the  request  of  the  said  defend- 
ant, and  for  divers  sums  of  money  before  that  time  advanced  and 
paid  by  the  said  plaintiff  for  the  said  defendant,  at  his  like  request, 
to  divers  persons,  as  and  for  premiums  and  rewards  for  the  under- 
writing and  subscribing  the  said  policies  of  insurance  of  the  said 
ships,  vessels  and  steamboats,  goods,  merchandise,  and  chattels, 
during  the  voyages  undertaken  by  said  ships,  vessels,  and  steam- 
boats, and  for  the  trouble,  care,  and  diligence  of  the  said  plaintiff 
in  that  behalf,  at  the  like  request  of  the  said  defendant,  and  which 
said  sum  of  money  the  said  plaintiff  avers  was  then  due  and  paya- 
ble ;  yet  the  said  defendant,  etc.  (as  in  25.) 

35.    AS   AN    AUCTIONEER. 

{Follow  25  to  *,  then  proceed  :)  for  the  work  and  labor,  care,  dili- 
gence, and  attention  of  the  said  plaintiff,  by  the  said  plaintiff  be- 
fore that  time  performed  and  bestowed,  as  an  auctioneer  and  ap- 
praiser, in  and  about  the  selling  and  disposing  of,  and  endeavoring 
to  sell  and  dispose  of,  by  auction  and  otherwise,  divers  goods,  chat- 
tels, and  effects,  for  the  said  defendant,  and  at  his  request,  and  in 
and  about  the  appraising  and  valuing  of  divers  other  goods,  chat- 
tels, and  effects,  for  the  said  defendant,  at  his  like  request,  and 
which  said  sum  of  money  the  said  plaintiff  avers  was  then  due  and 
payable  ;  yet  the  said  defendant,  etc.  (as  in  25\) 

36.    FOR   SERVICES    AS    SCHOOLMASTER:    FOR   BOOKS,   ETC. 

(Follow  25  to  *,  then  proceed :)  for  the  work  and  labor,  care,  dili- 
gence, and  attendance  of  I  be  said  plaintiff,  by  him,  the  said  plaint  - 
iff,  and  his  servants  and  teachers,  before  that  time  performed  and 
bestowed  for  the  said  defendant,  as  a  schoolmaster,  in  and  aboul 
the  teaching  and  instructing  the  children  of  the  said  defendanl  in 
the  various  branches  "I  education,  a1  the  request  of  the  said  de- 
fendant, and  for  divers  hooks,  pens,  paper,  chattels,  and  other  neo- 
iry  things,  by  the  said  plaintiff  before  that  time  found  and  pro- 


390  FORMS   OP    FETITIONS. 


vidcd  for,  and  used  by,  the  said  children  of  the  said  defendant 
about  that  work  and  labor  for  the  said  defendant,  and  at  his  like 
request;  and  also  for  meat,  drink,  washing,  lodging,  attendance, 
and  other  necessaries,  by  the  said  plaintiff  before  that  time  found 
and  provided  for  the  said  children  of  the  said  defendant,  and  at 
his  like  request,  and  which  said  sum  of  money  the  said  plaintiff 
avers  was  then  due  and  payable ;  yet  the  said  defendant,  etc.  (as 
in  25.) 

37.    AS   SURGEON   AND   r-IIYSICIAN. 

(Follow  25  to  *,  then  proceed  .-)  for  the  work  and  labor,  care,  dili- 
gence, journeys,  and  attendance  of  the  said  plaintiff,  by  the  said 
plaintiff,  before  that  time  performed  and  bestowed,  as  a  surgeon 
for  the  said  defendant,  and  at  his  request,  in  and  about  the  healing, 
and  curing  of  the  said  defendant,  and  of  other  persons,  of  various 
maladies  and  diseases  under  which  the  said  persons  respectively 
labored,  and  for  divers  medicines  and  other  chattels  before  that 
time  found  and  provided,  administered,  and  delivered  in  that  be- 
half, by  the  said  plaintiff,  for  the  said  defendant,  and  at  his  like 
request,  and  which  said  sum  of  money  the  said  plaintiff  avers  was 
then  due  and  payable ;  yet  the  said  defendant,  etc.  (as  in  25.) 

38.  AS  AN  UNDERTAKER  OF  FUNERALS. 

(Follow  25  to  *,  then  proceed :)  for  the  work  and  labor,  care,  dili- 
gence, and  attendance  of  the  said  plaintiff,  as  an  undertaker  of 
funerals,  before  that  time  performed  and  bestowed  by  the  said 
plaintiff  and  his  tervants  in  and  about  the  funeral  of  one  E  F,  (or,  a 
certain  person  deceased,)  on  the  retainer  and  at  the  request  of  the 
said  defendant,  and  for  the  hearse,  horses,  carriages,  and  other  chat- 
tels, used  and  applied  in  and  about  the  furnishing  and  conducting 
of  the  said  funeral,  by  the  said  plaintiff  before  that  time  found  and 
provided  for  the  said  defendant,  at  his  like  request,  and  which  said 
sum  of  money  the  said  plaintiff  avers  was  then  due  and  payable ; 
yet  the  said  defendant,  etc.  (as  in  25.) 

IV.  Respecting  Moneys. 

39.  FOR  MONEY  LENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant  on  the        day  of  ,  a.  d.  18     ,  was  in- 

debted to  the  said  plaintiff  in  the  sum  of  $  ,*  for  so  much  money, 
before  that  time  by  the  said  plaintiff  lent  and  advanced  to  the  said 
defendant,  at  his  request,  and  which  said  sum  of  money  the  said 


FORMS   OF   PETITIONS.  391 


plaintiff  avers  was  then  due  and  payable  ;  yet  the  said  defendant, 
though  often  requested,  has  not  paid  said  sum  of  money,  nor  any 
part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

40.    FOR   MONEY   PAID. 

{Follow  39  to  *,  then  proceed :)  for  so  much  money,  by  the  said 
plaintiff  before  that  time  paid,  laid  out,  and  expended,  to  and  for 
the  use  of  the  said  defendant,  at  his  request,  and  which  said  sum 
of  money  the  said  plaintiff  avers  was  then  due  and  payable ;  yet 
the  said  defendant,  etc.  (as  in  39.) 

41.    FOR   MONEY    HAD    AND    RECEIVED. 

(Follow  39  to  *,  then  proceed:)  for  so  much  money,  by  said  de- 
fendant before  that  time  had  and  received,  to  and  for  the  use  of 
the  said  plaintiff,  and  which  said  sum  of  money  the  said  plaintiff 
avers  was  then  due  and  payable ;  yet  the  said  defendant,  etc.  (as 
in  39.) 

42.    FOR   INTEREST. 

(Follow  39  to  *,  then  proceed:)  for  so  much  money,  before  that 
time  and  then  due  and  payable  from  the  said  defendant  to  the  said 
plaintiff,  for  interest  upon  and  for  the  forbearance  of  divers  large 
suras  of  money  before  that  time  due,  and  owing  from  the  said  de- 
fendant to  the  said  plaintiff,  and  by  the  said  plaintiff  forborne  for 
a  long  space  of  time  before  they  elapsed,  at  the  request  of  the  said 
defendant,  and  which  said  sum  of  money  the  said  plaintiff  avers 
was  then  due  and  payable ;  yet  the  said  defendant,  etc.  (as  in  39.) 

43.    ON   AN   ACCOUNT   STATED. 

(Follow  39  to  *,  then  proceed:)  on  an  account  before  that  time 
stated,  between  the  said  plaintiff  and  the  said  defendant,  touching 
divers  moneys,  goods,  dealings,  and  sales  between  said  parties,  and 
Which  said  sum  of  money  the  said  plaintiff  avers  was  then  due  and 
payable;  yet  the  said  defendant,  etc.  (as  in  39.) 

V.  Relating  to  the  Character  in  which  Persons  sue  or  are  sued. 

I  I.    SURVIVING    PARTNER. 

The  said  A  P>,  survivor  of  E  F,  plaintiff,  complains  of  C  D,  sur- 
vivor of  Q   II,  defendant,  for  that  tho  said  C  D  and  G-  II,  in  Inn 


392  FORMS   OF    PETITIONS. 

lifetime,  were  partners,  doing  business  under  the  name  of  C  D  & 
Co.,  and  as  sueh  partners  were,  on  the  day  of  ,  a.  d. 

18  ,  indebted  to  the  said  A  B  and  E  F,  in  his  lifetime  partners, 
doing  business  under  the  name  of  AB&  Co.,  in  the  sum  of  $  , 
(here  set  out  the  cause  of  action  as  in  former  counts,  and  conclude  as 
follows:)  yet  neither  the  said  G  II  in  his  lifetime,  nor  the  said  de- 
fendant, at  any  time,  though  often  requested,  has  paid  said  sum  of 
•  money,  or  any  part  thereof,  either  to  the  said  plaintiff,  or  to  the 
said  E  F,  in  his  lifetime. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said         day  of  ,  A.  d.  18     . 

45.  HUSBAND  AND  WIFE  FOR  WORK,  ETC.,  OF  WIFE  BEFORE  MARRIAGE. 

The  said  A  B  and  E  F  his  wife,  plaintiffs,  complain  of  C  D,  de- 
fendant, for  that  the  said  defendant,  whilst  the  said  E  F  was  sole 
and  unmarried,  on  the         day  of  ,  a.  d.  18     ,  was  indebted 

to  the  said  E  F  for,  etc.  (as  before  given) ;  yet  the  said  defendant, 
though  often  requested,  hath  not  paid  the  said  sum  of  money,  or 
any  part  thereof,  to  the  said  plaintiffs,  or  to  either  of  them. 

Wherefore  the  said  plaintiffs  pray  judgment  against  the  said 
defendant  for  the  said  sum  of  %  ,  with  interest  thereon  from 
the        day  of  ,  a.  d.  18     . 

46.  AGAINST    HUSBAND  AND   WIFE,  FOR   DEBTS   OF  WIFE   WHILE    SOLE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  his 
wife,  for  that  the  said  E,  whilst  she  was  sole  and  unmarried,  on 
the         day  of  ,  a.  d.  18     ,  was  indebted  to  the  said  plaintiff 

in  the  sum  of  $  ,  etc.  (set  out  cause  of  action  according  to  its 
nature) ;  yet  the  said  E,  while  so  sole  and  unmarried,  and  the  said 
defendants,  since  their  intermarriage,  have  not,  nor  hath  either  of 
them,  as  yet  paid  said  sum  of  money,  (or,  several  sums,  if  more  than 
one,)  or  any  part  thereof,  to  the  said  plaintiff,  though  often  re- 
quested so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendants,  etc. 

47.    BY    EXECUTORS   AND   ADMINISTRATORS. 

The  said  A  B,  executor  of  the  last  will  and  testament  of  E  F, 
deceased,  plaintiff,  complains  of  the  said  C  D,  defendant,  for  that 
the  said  C  D  heretofore,  in  the  lifetime  of  the  said  E  F,  to  wit,  on 
the         day  of  ,  a.  d.  18     ,  was  indebted  to  the  said  E  F  in 


FORMS    OF    PETITIONS.  393 

the  sum  of  8  ,  etc.  (here  state  cause  of  action)  ;  yet  the  said  de- 
fendant hath  not  paid  said  sum  of  money,  or  any  part  thereof,  (or, 
if  more  than  one,  the  said  several  sums  of  money,  or  any  or  either 
of  them,  or  any  part  thereof,)  to  the  said  E  F  in  his  lifetime,  or  to 
the  said  plaintiff  since  the  death  of  the  said  E  F,  although  often 
requested  so  to  do. 

Wherefore  the  said  plaintiff,  as  such  executor,  prays  judgment 
against  said  defendant,  etc. 

^J  All  profert  is  done  away  with  by  the  code ;  and  hence  no  ne- 
cessity of  making  profert  of  letters  testamentary.  Indeed,  in  prac- 
tice under  the  old  system,  a  formal  profert  was  seldom  inserted  in 
the  declaration.  It  is  in  issue  by  the  averments  of  the  petition, 
and  can  be  denied;  winch  would  compel  plaintiff  to  show  his  let- 
ters. The  same  is  also  true  of  administrators.  This  form  can  bo 
easily  adapted  for  an  administrator. 

48.    AGAINST    EXECUTORS   OR    ADMINISTRATORS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  executor  of 
the  last  will  and  testament  of  E  F,  deceased,  (or,  administrator  of 
the  estate  of  E  F,  deceased,)  defendant,  for  that  the  said  E  F,  in 
his  lifetime,  to  wit,  on  the          day  of  ,  a.  d.  18     ,  was  in- 

debted to  the  said  plaintiff  in  the  sum  of  8  ,  etc.  (as  before 
given) ;  yet  the  said  E  F,  in  his  lifetime,  and  the  said  defendant,  as 
executor  as  aforesaid,  (or,  administrator  as  aforesaid,)  since  the  death 
of  the  said  E  F,  have  not,  nor  hath  either  of  them,  as  yet  paid  the 
said  sum  (or,  said  several  sums)  of  money,  or  any  part  thereof,  to 
the  said  plaintiff,  although  often  requested  so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant, as  such  executor,  (or,  administrator,)  for  the  said  sum  of 
S  ,  together  with  interest  thereon  from  the  said  day  of  , 
A.  D.  18  ,  to  be  levied  and  paid  out  of  the  estate  of  the  said  E  F, 
in  the  hands  of  the  said  defendant  to  be  administered. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  executor  of 
the  Last  will  and  testament  of  E  F,  deceased,  (or,  administrator  of 
the  estate  of  E  F,  deceased,)  defendant,  for  that  the  said  E  F  was, 
m  hia  lifetime,  to  wit,  on  the        day  of  ,  a.  d.  18    .indebted 

to  the  said  plaintiff  in  the  sum  of  8  (here  state  the  particular 
common  count  applicable  to  the  cause  of  action) ;  yet  the  said  B  l\ 
though  often  requested  BO  to  do,  did  not  in  his  lifetime  pay  said 


394  FORMS   OP   PETITIONS. 


sum  of  money,  nor  any  part  thereof;  and  the  plaintiff  saith  that 
after  the  appointment  and  qualification  of  the  said  C  D  as  such  ex- 
ecutor (or,  administrator)  as  aforesaid,  and  before  the  commence- 
ment of  this  action,  ho  presented  said  claim  to  the  said  C  D,  and 
requested  said  CD  to  allow  the  same  as  a  valid  claim  against  said 
estate;  but  that  said  defendant  absolutely  refused  to  allow  said 
claim  against  said  estate,  and  rejected  the  same  as  such,  and  has 
hitherto  and  still  does  refuse  to  allow  and  pay  the  same;  nor  has 
the  same  been  paid  by  said  E  F  in  his  lifetime,  nor  has  said  C  D 
paid  the  same  or  any  part  thereof. 

Wherefore  said  plaintiff  prays  judgment  against  said  C  D  as 
such  executor  (or,  administrator)  for  said  sum  of  $  ,  together 
with  interest  thereon  from  the        day  of  ,  a.  d.  18     ,  to  be 

levied  and  paid  out  of  the  estate  of  said  E  F,  in  the  hands  of  said 
defendant  to  be  administered. 

S  N,  Att'y  for  Plaintiff. 


These  three  forms  will  answer  in  all  cases.  The  two  first  forms 
will  answer  when  the  law  allows  a  suit,  but  prohibits  the  recovery 
of  costs.  But  in  Ohio  the  statute  declares  that  no  suit  shall  be 
brought  unless  the  claim  has  been  presented  to  the  representative, 
and  by  him  rejected.  He  has  a  right  to  insist  upon  the  affidavit 
of  the  creditor,  provided  for  in  the  statute,  before  deciding  whether 
he  will  allow  or  reject.  But  if  the  claim  is  present  without  a  veri- 
fication, and  no  objection  is  interposed  on  that  account  by  the 
representative,  but  he  rejects  and  refuses  to  allow  the  claim,  he 
waives  the  verification,  and  a  suit  may  be  brought.  Under  the 
Ohio  statute,  it  is  therefore  necessary  to  aver  this  presentation  and 
rejection  of  the  claim,  or  the  petition  will  be  bad. 

SPECIAL  COUNTS. 
I.   On  Promissory  Notes. 

49.    PAYEE  V.   MAKER  * 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  at 

(j)lace  where  dated,)  made  his  certain  promissory  note  in  writing  of 
that  date,  and  then  and  there  delivered  the  same  to  the  said 
plaintiff,  and  thereby  promised  to  pay  to  the  said  plaintiff  or  order, 
(if  not  payable  to  order,  leave  the  words  uor  order"  out,)  in         days 

*See  section  117,  page  258. 


FORMS   OP   PETITIONS.  395 


(in  one  year,  or,  two  years,  or,  months,)  from  the  date  thereof 
the  sum  of  8  ,  with  interest  thereon,  (at  the  rate  of        per 

cent.,  if  there  is  a  special  rate  stated  in  the  note,)  which  period 
has  since  elapsed ;  yet  the  said  defendant  hath  not  paid  said  sum 
of  money,  nor  any  part  thereof,  to  the  said  plaintiff,  although  often 
requested  so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  together  with  interest  thereon, 
(at  the  rate  of  per  cent.,  if  any  special  rate  is  stated  in  the  note,) 
from  the        day  of  ,  a.  d.  18     . 

50.    ON   NOTE   MADE   BY   A   FIRM. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F, 
doing  business  under  the  name  of  D  &  E,  defendants,  for  that  the 
said  defendants,  on  the        day  of  ,  a.  d.  18     ,  at  {place  of 

date,)  made  their  certain  promissory  note  in  writing  of  that  date, 
and  then  and  there  delivered  the  same  to  the  said  plaintiff,  and 
thereby,  by  the  said  name  of  D  &  E,  promised  to  pay  to  the  said 
plaintiff,  or  order,  the  sum  of  8  ,  in  days  from  the  date 
thereof,  which  period  has  since  elapsed  ;  yet  the  said  defendants 
have  not,  nor  hath  either  of  them,  paid  said  sum  of  money,  or  any 
part  thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays,  etc.  (as  in  49.) 

Note. — Since  these  petitions  have  to  be  sworn  to,  the  amount 
actually  due  must  be  set  forth  in  the  petition,  and  the  prayer  must 
state  from  what  point  of  time  interest  is  to  be  calculated.  Hence 
the  petition  must  not  ask  for  what  is  due  at  the  time  of  filing  it, 
with  interest  from  that  date,  but  for  what  is  due  at  the  point  of 
time  from  which  interest  would  be  calculated  on  rendering  judg- 
ment. Hence,  if  the  last  payment  was  made  some  time  before  the 
bringing  of  the  action,  interest  will  be  calculated  from  that  date; 
Otherwise  the  petition  would  compound  the  interest.  Where  par- 
tial payments  have  been  made,  but  not  enough  to  pay  all  the  in- 
terest due,  then  these  payments  are  applied  by  law  to  the  earliest 
int.  rest,  and  the  demand  for  interest  will  be  from  the  time  up  to 
which  the  payments  satisfy  the  interest.  In  such  a  ease,  the  aver 
ment  may  still  he  as  in  the  above  forms,  but  the  prayer  lor  interesl 
will  not  date  from  the  time  when  the  note  shows  it  to  be  due,  but 
from  the  time  up  to  which  il  has  been  paid. 

Where,  however,  there  have  been   payments  exceeding  the  in- 
d  tlr     .:'•','  part  of  the  principal,  the  petition  may 


*",s"    ! 


396  FORMS   OP    PETITIONS. 


be  varied  in  the  averment  of  the  breach.  The  following  form  will 
answer.  There  is  probably  no  need  of  this  form,  so  the  prayer, 
as  to  the  amount  of  debt  due  and  interest,  be  correctly  stated. 
The  prayer  for  judgment  fixes  the  amount  of  the  recovery. 

51.    ON    A    NOTE   PARTLY   PAID. 

(Follow  49  to  the  breach,  then  proceed:*)  and  the  said  plaintiff 
saith  that  there  was  due  and  unpaid  on  said  promissory  note'on 
the         day  of  ,  a.  d.  18     ,  the  sum  of  $         ,  which  last- 

named  sum  the  said  defendant  has  not  paid,  nor  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  last-named  sum  of  $  ,  together  with  in- 
terest thereon  from  the  said        day  of  ,  a.  d.  18     . 

^[  The  time  from  which  interest  should  be  claimed  is  the  day 
from  which  the  sum  demanded  draws  interest  in  law,  and  that  will 
be  determined  by  the  law  regulating  the  calculation  of  interest. 

The  rule  in  Massachusetts  is  thus  stated  :  "  The  rule  is,  to  com- 
pute the  interest  on  the  principal  sum  from  the  time  when  interest 
commenced  to  the  first  time  when  a  payment  was  made,  which 
exceeds,  either  alone  or  with  previous  payments,  if  any,  the  inter- 
est at  that  due ;  add  the  interest  to  the  principal,  and  from  this 
sum  deduct  the  payment  made  at  that  time,  together  with  previous 
payments,  if  any,  and  the  remainder  will  constitute  a  new  princi- 
pal, on  which  compute  interest  and  deduct  payments  as  upon  the 
first  principal  -*nd  proceed  in  this  manner  up  to  the  time  when 
the  last  paymerl  was  made  exceeding  the  interest  due  at  that  date." 
Dean  v.  Williams.  17  Mass.  417  ;  Fay  v.  Bradley,  1  Pick.  194.  This 
rule  has  been  adopted  in  Ohio  practice.  Hammer  v.  Neville  et  al., 
Wright,  1G9. 

Where  a  note  or  money  is  payable  on  demand,  interest  is  to  be 
computed  from  the  service  of  the  writ  or  commencement  of  the 
suit,  Hunt  v.  Never,",  15  Pick.  500  ;  Brewer  v.  Tyringham,  12  lb. 
547;  McLure  v.  Long  worth,  Wright,  582;  unless  a  previous  de- 
mand is  proved.  Patrick  v.  Clay,  4  Bibb,  24G  ;  2  lb.  467 ;  2  Bailey, 
276. 

A  note,  however,  which  simply  promises  to  pay  a  certain  sum, 
without  specifying  whether  on  demand  or  on  time,  is  due  at  once, 
and  carries  interest  from  date.  As  :  Due  A  B  so  much  ; — such  a 
note  carries  interest  from  date.  Francis  v.  Castleman,  4  Bibb,  282  ; 
Cannon  v.  Biggs,  1  McCord,  370. 

The  rate  of  interest  is  to  be  determined  by  the  law  of  the  place 


FORMS   OP    PETITIONS.  397 


whore  the  contract  is  to  be  executed.  Archer  v.  Dunn,  2  Watts 
&  Serg.  327 ;  Sweet  v.  Dodge,  4  Smedes  &  Marsh.  667  ;  Healy 
v.  Gorman,  3  Green,  (N.  J.)  328.  Where  no  place  of  payment  is 
stated  in  the  note,  interest  is  to  be  calculated  according  to  the  law 
of  the  place  where  the  note  was  made  ;  and  the  date  is  prima  facie 
evidence  of  its  being  made  at  the  place  where  dated.  Hoppins  v. 
Miller,  2  Haw.  185.  In  the  absence  of  proof  of  what  is  the  legal 
rate  of  interest  in  the  place  where  a  note  was  made,  the  plaintiff 
is  entitled  to  the  rate  fixed  by  the  law  of  the  forum.  Wood  v. 
Corl,  4  Met.  203. 

Where  a  note  is  payable  on  demand,  in  order  to  recover  interest 
prior  tc  the  commencement  of  the  suit,  it  is  necessary  to  aver  a 
demand  and  the  precise  time  of  it. 

There  are  cases  which  present  a  different  question.  Where  the 
law  allows  parties  to  contract  for  a  greater  or  less  rate  of  interest 
than  that  fixed  by  law,  what  rate  will  a  note  bear  after  due,  where 
it  is  payable  at  a  day  certain,  with  interest  at  a  greater  or  less  rate 
than  that  fixed  by  law  ?  This  question  came  up  in  the  case  of 
Brewster  v.  Wakefield,  22  How.  U.  S.  118.  The  note  in  that  case 
contained  a  promise  to  pay  a  certain  sum,  to  the  order  of  Wake- 
field, twelve  months  after  the  date  thereof,  with  interest  thereon  at 
the  rate  of  twenty -five  per  cent,  per  annum  from  the  date  thereof. 
Taney,  C.  J. :  "  The  written  stipulation  as  to  interest  is  interest  from 
the  date  to  the  day  specified  for  the  payment.  There  is  no  stipu- 
lation in  regard  to  interest  after  the  notes  become  due,  in  case  the 
debtor  should  fail  to  pay  them  ;  and  if  the  right  to  interest  de- 
pended altogether  on  the  contract,  and  was  not  given  by  law,  in  a 
case  of  tins  kind,  the  appellee  would  be  entitled  to  no  interest 
whatever  after  the  day  of  payment.  The  contract  being  entirely 
silent  as  to  interest,  if  the  notes  should  not  be  punctually  paid,  the 
creditor  is  entitled  to  interest  after  that  time  by  operation  of  law, 
and  not  by  any  provision  in  the  contract.  And  in  this  view  of  the 
subject,  we  think  the  territorial  courts  committed  an  error  in 
allowing,  after  the  notes  fell  due,  a  higher  rate  of  interest  than 
that  established  by  law,  where  there  was  no  contract  to  regulate  it. 
The  cases  of  Macomber  v.  Dunham,  8  Wend.  550  ;  United  States 
Bank  v.  Chapin,  0  lb,  171  ;  and  Ludwick  v.  Hnntsinger,  5  Watte 
erg.  51,  60.  wire  decided  upon  this  principle,  and.  in  the 
opinion  of  the  court,  correctly  decided."  This  decision  was  made 
under  a  law.  which  enacted  that  ••  any  rate  of  interest  agreed  upon 
by  the  parties  in  the  contract,  specifying  the  same  in  writing,  shall 
be  legal  and  valid."      This   is   like   the  Ohio  statute  in  this  respect. 


398  FORMS    OF   PETITIONS. 


In  Ludwick  v.  Iluntsinger,  5  Watts  &  Serg.  51,  it  was  held  that  a 
note  payable  at  a  future  day,  with  three  per  cent,  interest  from 
date,  carries  that  interest  till  the  day  of  payment,  and,  after  that, 
carries  lawful  interest.  In  the  United  States  Bank  v.  Chapin, 
9  Wend.  471,  it  was  held  that  where  a  hank  was  allowed  to  charge 
but  six  per  cent,  on  discounts,  its  notes,  after  they  became  due, 
and  were  not  paid,  carried  seven  per  cent,  interest,  that  being  the 
interest  fixed  by  the  law  of  New  York  on  a  failure  to  pay  money 
when  due.  These  two  cases  clearly  settle  the  rule,  that  where  a 
note  is  given,  payable  at  a  day  certain,  with  a  rate  of  interest 
stated  therein,  such  note,  after  it  becomes  due,  carries  not  the  in- 
terest named  in  the  note,  but  the  interest  fixed  by  law. 

The  same  ruling  was  made  in  the  case  of  .Robinson  v.  Kinney, 
2  Kan.  184.  The  note  there  was  in  the  following  form  :  "  On  the 
1st  day  of  November  next,  for  value  received,  we  promise  to  pay 
Mrs.  Lois  Kinney  or  bearer  $300,  with  interest  at  the  rate  of  three 
per  cent,  per  month."  The  court  held  that,  after  it  became  due, 
it  carried  only  the  interest  fixed  by  law— to  wit,  six  per  cent.  The 
statute  of  Kansas,  say  the  court,  is  precisely  the  same  as  that  of 
Minnesota  ;  and  the  court  followed  the  decision  in  Brewster  v. 
Wakefield,  supra.  The  same  decision  was  made  by  Judge  Guthrie 
in  the  Gallia  Common  Pleas,  in  1872.  It  is  clear  that  there  is  here 
no  written  agreement  for  interest  after  the  note  is  due  ;  and  where 
the  interest  stated  in  the  note  is  less  than  legal  interest,  it  becomes 
apparent  that,  by  neglect  to  pay,  the  pai-ty  should  not  keep  the 
money  at  the  low  rate  of  interest  named.  But  the  rule  is  one 
which  must  be  applied  in  the  one  case  as  in  the  other. 

52.  ON  A  NOTE  PAYABLE  ON  DEMAND,  WHEN  DEMAND  HAS  BEEN 

MADE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  A.  D.  18     ,  at 

(place  of  date,)  made  his  certain  promissory  note  in  writing  of  that 
date,  and  then  and  there  delivered  the  same  to  the  said  plaintiff, 
and  thereby  promised  to  pay  to  the  said  plaintiff  (or  order,  as  the 
note  is,)  the  sum  of  $  ,  on  demand  ;  and  the  said  plaintiff  saith 

that  afterward,  on  the  day  of  ,  A.  D.  18     ,  he,  the  said 

plaintiff,  did  request  the  said  defendant  to  pay  to  him,  the  said 
plaintiff,  the  said  sum  of  $  ,  in  said  note  mentioned  ;  yet  the 

said  defendant  did  not,  nor  has  he  since  paid  said  sum  of  money, 
or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 


FORMS   OF   PETITIONS.  399 

fendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 

from  the  said        day  of  ,  a.  d.  18     ,  (time  of  demand.) 

Note. — Where  the  exact  time  can  not  be  stated,  the  averment 
may  be  that  on  or  before  a  certain  day  the  demand  was  made,  and 
then  interest  will  commence  at  the  day  named. 

53.    ON   A   NOTE   MADE   IN   ANOTHER   STATE,   TO    RECOVER   THE    INTER- 
EST   OF    THAT    STATE. 

The  said  A  B,  plaintiff,  complains  of  C  B,  defendant,  for  that 
the  said  defendant,  on  the  day  of  ,  a.  d.  18     ,  at  , 

in  the  State  of  New  York,  made  his  certain  promissory  note  in 
writing  of  that  date,  and  then  and  there  delivered  the  same  to  the 
said  plaintiff,  and  thereby  promised  to  pay  to  the  said  plaintiff,  or 
order,  the  sum  of  8  ,  with  interest  thereon,  in  days  from 

the  date  thereof,  which  period  has  since  elapsed ;  and  the  said 
plaintiff  avers  that,  by  the  law  of  the  said  State  of  New  York,  he, 
the  said  plaintiff,  is  entitled  to  recover  interest  on  the  said  sum  at 
the  rate  of  seven  per  cent,  per  annum ;  yet  the  said  defendant  did 
not  pay  said  sum  of  money  when  due,  nor  any  part  thereof,  nor 
hath  he,  since  the  same  became  due,  paid  the  same,  with  interest 
thereon,  at  the  said  rate  of  seven  per  cent.,  or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  together  with  interest  thereon, 
at  the  said  rate  of  seven  per  cent,  from  the  said  day  of  , 
a.  d.  18     . 

Note. — The  advantage  of  this  form  of  declaring  is  that,  in  case 
of  a  default,  no  evidence  of  the  rate  of  interest  would  be  required, 
nor  in  any  case,  unless  denied  by  the  defendant.  It  is  often  diffi- 
cult to  prove  the  rate  of  interest  abroad.  This  mode  of  declaring 
will  avoid  the  difficulty,  except  where  there  is  a  dispute  as  to  what 
the  rate  is,  which  seldom  happens.  Under  the  code,  it  is  indeed 
doubtful  whether  any  interest  but  that  of  the  forum  can  be  re- 
covered, unless  the  petition  Sets  out  all  the  facts  which  show  the 
right  to  recover  it. 

54.    ON   A   NOTE    HAVING   A  WRONG   DATE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the        day  of  ,  a.d.  18     ,  (this 

should  he  the  true  date  of  the  making,)  at  ,  (place  named  in 

note,  if  one.)  inade  his  certain  promissory  note  in  writing,  bearing 
date  by  mistake  the         day  of  ,  a.  d.  18     ,  when  the  said 


•400  FORMS   OF   PETITIONS. 

promissory  note  was,  at  the  time  of  the  making  thereof,  meant  and 
understood  hy  the  said  defendant  and  plaintiff  to  be  dated  on  the 
day  of  ,  a.  d.  18     ,  and  thereby  promised  to  pay  the 

said  plaintiff,  or  order,  da}Ts  after  the  date  thereof,  that  is  to 

say,  days  after  the  said         day  of  ,  a.  d.  18     ,  when  the 

said  promissory  note  was  so  made  and  understood  to  be  made, 
the  sum  of  $  ,  and  then  and  there  delivered  the  same  to  the 
said  plaintiff;  yet  the  said  defendant,  etc.  {concluding  as  in  pre- 
vious forms,  demanding  interest  from  the  true  date.) 

55.    ON    A   NOTE   PAYABLE    AT    A    PARTICULAR   PLACE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  A.  D.  18     ,  at 

(jplace  of  date,)  made  his  certain  promissory  note  in  writing,  of 
that  date,  and  then  and  there  delivered  the  same  to  the  said  plaint- 
iff, and  thereby  promised  to  pay  the  said  plaintiff,  at  the  banking- 
house  of  ,  in  the  city  of  ,  the  sum  of  $  ,  in 
days  after  the  date  thereof,  which  period  has  since  elapsed  ;  yet  the 
said  defendant  did  not,  at  the  time  when  said  note  became  due,  pay 
the  same  for  the  said  plaintiff,  at  the  banking-house  of  the  said 
,  in  said  city  of  ,  nor  hath  the  said  defendant  since 
paid  the  said  sum,  or  any  part  thereof. 

Wherefore  he  prays,  etc. 

^|  Ko  demand  is  necessary  at  the  place  on  such  a  note ;  nor  is  it 
necessary  to  aver  one  in  a  suit  v.  maker.  Conn  v.  Gano,  1  Ohio, 
483.  Where,  however,  the  maker  is  ready  at  the  place  with  the 
money,  it  is  a  tender,  and  may  be  pleaded  as  such.  Otis  v.  Barton, 
10  N.  Hamp.  433  ;  Bond  v.  Storrs,  13  Conn.  412.  Where  indorsers 
are  sought  to  be  held,  a  demand  at  the  place  is  necessary. 

56.  ON  A  NOTE  PAYABLE  IN  INSTALLMENTS,  WHERE  A  FAILURE  TO 
PAY  ONE  INSTALLMENT  MAKES  ALL  SUBSEQUENT  ONES  DUE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  A.  D.  18     ,  at 

(j)lace  of  date,  if  one;  if  no  date,  no  place  need  be  stated,)  made  his 
certain  promissory  note  in  writing  of  that  date,  and  then  and  there 
delivered  the  same  to  the  said  plaintiff,  and  thereby  promised  to 
pay  to  the  said  plaintiff,  or  order,  the  sum  of  $  ,  in  manner 
following  :  $  in  one  year  from  date,  $  in  two  years  from  date, 
and  $  in  three  years  from  date;  and  that,  in  case  default  should 
be  made  in  either  of  said  payments,  then  the  whole  of  said  sum  of 


FORMS  OP   PETITIONS. 


401 


§  should  become  payable ;  and  the  said  plaintiff  saith  that  after- 
ward, on  the  day  of  ,  a.  o.  18  ,  ensuing  the  date  thereof, 
the  first  of  said  installments  became  due  and  payable,  and  yet  the 
said  defendant  did  not  pay  the  said  sum  of  8  ,  on  the  day 
of  ,  a.  d.  18  ,  whereby  he  became  liable  to  pay  the  whole 
of  said  sum  of  8  ;  yet  the  said  defendant  hath  not  paid  said  sev- 
eral sums  of  money,  or  either  of  them,  or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

Note. — If  suit  is  not  brought  till  all  the  installments  are 
due,  no  notice  need  be  taken  of  the  forfeiture.  The  petition  may 
simply  set  forth  the  making  of  the  note  and  the  non-payment  of 
the  said  several  installments. 

57.   INDORSEE   V.   MAKER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  at 

(jplace  of  date,  if  any,')  made  his  certain  promissory  note  in  writing 
of  that  date,  and  then  and  there  delivered  the  same  to  one  E  F, 
and  thereby  promised  to  pay  to  the  said  E  F,  or  order,  the  sum  of 
$       ,  in  from  the  date  thereof;  and  the  said  E  F  did  then 

and  there  indorse  and  deliver  said  promissory  note  to  the  said 
plaintiff,  (or,  if  a  second  or  third  indorsee,  did  then  and  there  in- 
dorse and  deliver  the  same  to  one  Gr  H,  and  the  said  G  H  did 
afterward  then  and  there  indorse  and  deliver  the  same  to  one  H  I, 
and  the  said  H  I  did  afterward  then  and  there  indorse  and  deliver 
the  same  to  the  said  plaintiff.)  yet  the  said  defendant  hath  not 
paid  said  sum  of  money,  nor  any  part  thereof,  to  the  said  E  F 
before  said  indorsement,  or  to  the  said  plaintiff  since  said  indorse- 
ment. 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  S       ,  together  with  interest  thereon  from  the  said 
day  of  ,  a.  d.  18     . 

Note. — Where  the  dates  of  the  indorsements  are  known,  it  may 
be  well  enough  to  state  them,  as  these  will  show  whether  indorsed 
before  or  after  due. 
vol.  1—26 


402  FORMS   OF   PETITIONS. 


58.    STATEMENT   OF   AN   INDORSEMENT   BY   AN   ADMINISTRATOR. 

(State  the  note  as  in  the  last  form,  then  add:')  and  that  the  said 
E  F,  afterward,  on  the        day  of  ,  a.  d.  18     ,  departed  this 

life,  and  one  G-  H,  was  on  the        day  of  ,  a.  d.  18     ,  by  the 

Probate  Court  of  the  county  of  ,  duly  appointed  adminis- 

trator of  the  estate  of  the  said  E  F,  deceased,  and  the  said  G  H 
afterward,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  as  such  ad- 

ministrator, indorsed  and  delivered  the  said  promissory  note  to  the 
said  plaintiff,  (or  to  any  other  indorsee?) 

(The  balance  of  the  petition  will  be  as  in  57.) 

59.  ON  A  NOTE  PAYABLE  TO  BEARER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the  day  of  ,  a.  d. 

18  ,  at  (place  of  date,  if  it  has  any,)  made  his  certain  promissory 
note  in  writing  of  that  date,  and  then  and  there  delivered  the  same 
to  one  E  F,  and  thereby  promised  to  pay  to  the  said  E  F,  or  bearer, 
the  sum  of  $  ,  in  days  from  the  date  thereof,  and  the 

said  E  F  then  and  there,  for  a  valuable  consideration,  delivered  the 
said  promissory  note  to  the  said  plaintiff,  whereby  the  said  plaintiff 
then  and  there  became  the  lawful  holder  of  the  said  promissory  note, 
and  entitled  to  demand  the  money  due  thereon  of  the  said  defend- 
ant ;  yet  the  said  defendant  did  not  pay  said  sum  of  money  to  the 
said  E  F,  while  he  was  the  lawful  holder  of  the  said  promissory 
note,  nor  hath  he  paid  the  same  to  the  said  plaintiff  since  he  so  be- 
came entitled  to  receive  the  sum  due  thereon. 

Wherefore  he  prays  judgment  against  the  said  defendant,  for  the 
said  sum  of  $  ,  together  with  interest  thereon  from  the  said 

day  of  ,  a.  d.  18     . 

60.   INDORSEE   V.    INDORSER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  one  E  F,  on  the        day  of  ,  a.  d.  18     ,  at  (place  of 

date,)  made  his  certain  promissory  note  in  writing  of  that  date,  and 
then  and  there  delivered  the  same  to  the  said  defendant,  and  thereby 
promised  to  pay  to  the  said  defendant,  or  order,  the  sum  of  S  , 

in  days  after  the  date  thereof;  and  the  said  defendant  did 

afterward  then  and  there  indorse  and  deliver  the  said  promissory 
note  to  the  said,  plaintiff,  (or,  if  last  indorser,  state  indorsement  to 
one  G  H,  and  then  aver  indorsement  by  him  to  plaintiff  as  in  57;) 


FORMS    OP   PETITIONS.  403 

and  the  said  plaintiff  further  saith  that  afterward,  to  wit,  on  the 
day  of  ,  a.  d.  18     ,  when  said  note  became  due, 

the  said  promissory  note  was  duly  presented  to  the  said  E  F,  and 
payment:  thereof  duly  required,  according  to  the  tenor  and  effect  of 
said  promissory  note,  and  the  said  E  F  then  and  there  refused  to 
pay  the  said  sum  of  money ;  of  all  which  the  said  defendant  after- 
ward, on  the  day  and  year  last  aforesaid,  had  due  and  legal  notice; 
yet  neither  the  said  defendant,  nor  the  said  E  F,  has  paid  said  sum 
of  money,  or  any  part  thereof,  to  the  said  plaintiff.  Wherefore  he 
prays  judgment,  etc. 

61.    AN    AVERMENT    OF    WANT    OF    FUNDS    TO    EXCUSE    A    NOTICE    OF 

NON-PAYMENT. 

{Proceed  as  in  the  last  up  to  the  end  of  the  averment  of  a  demand, 
and  in  lieu  of  the  averment  of  notice  insert:)  and  the  said  plaintiff 
saith  that,  at  the  time  of  making  said  promissory  note  as  aforesaid, 
and  from  thence  until,  and  at  the  time  when,  the  same  was  presented 
to  the  said  E  F  for  payment  thereof,  the  said  E  F  had  not  in  his 
hands  any  effects  of  the  said  defendant,  nor  had  the  said  E  F  re- 
ceived any  consideration  from  the  said  defendant  for  the  making  or 
payment  of  the  said  promissory  note ;  but,  on  the  contrary,  the 
said  E  F  made  said  promissory  note  for  the  accommodation  and  at 
the  request  of  the  said  defendant,  and  the  said  defendant  has  not 
sustained  any  damage  for  the  want  of  a  notice  of  the  non-payment 
by  said  B  F  of  the  sum  of  money  in  the  said  promissory  note 
stated ;  yet  the  said  defendant,  etc.  (as  in  GO.) 

62.  AN  AVERMENT  THAT  THE  MAKER  COULD  NOT  BE  FOUND. 

(Proceed  as  in  GO  to  the  close  of  the  averment  of  indorsement,  thru 
add.)  and  the  said  plaintiff  saith  that  afterward,  when  the  said 
promissory  note  became  due  and  payable,  to  wit,  on  the  day 

of  ,  A.  D.  18     ,  (the  day  it  became  due,)  diligent  search 

and  inquiry  was  made  after  the  said  E  F,  at  ,  aforesaid, 

(the  place  where  the  note  is  payable ;  and  this  is  the  place  of  its  date, 
if  no  other  place  is  specified  in  the  same.)  and  elsewhere,  in  order 
that  the  said  promissory  note  might  be  presented  to  tin'  said  E  F 
forpaymenl  thereof,  bu1  the  said  E  F  could  not  on  such  search  and 
inquiry  he  found,  nor  did  the  said  E  F  then,  or  at  any  time  before 
or  since,  pay  or  cause  to  be  paid  the  said  sum  of  money,  in  said 
promissory  note  specified,  or  any  part  thereof,  bul  hath  wholly 
failed  .so  to   do;    Of  all    which    the   said   defendant    afterward    had 


404  FORMS   OP   PETITIONS. 


notice  ;  yet  the  said  defendant  hath  not  paid  said  sum  of  money, 
nor  an}*  part  thereof,  to  the  said  plaintiff. 
Wherefore  he  prays  judgment,  etc. 

63.    SURVIVING  PAYEE   V.   MAKER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     . 

at  (place  of  date,)  made  his  certain  promissory  note  in  writing  of 
that  date,  and  then  and  there  delivered  the  same  to  the  said  plaintiff 
and  one  B  F,  he,  the  said  E  F,  then  being  in  full  life,  and  thereby 
promised  to  pay  to  the  said  plaintiff  and  the  said  E  F,  then  in 
full  life,  or  their  order,  the  sum  of  $  ,  in  days  after  the 

date  thereof,  and  the  said  plaintiff  avers  that  the  said  E  F  has, 
since  the  making  of  said  promissory  note,  and  before  the  com- 
mencement of  this  action,  departed  this  life,  leaving  the  said 
plaintiff  his  survivor;  yet  the  said  defendant  has  not  paid  said  sum 
of  money,  nor  any  part  thereof,  to  the  said  E  F  in  his  lifetime,  or 
to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said         day  of  ,  a.  d.  18     . 

64.   PAYEE   V.   SURVIVING   MAKER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant  and  one  E  F,  who  has  since  deceased,  on 
the        day  of  ,  a.  d.  18     ,  at  (place  of  date,)  made  their  certain 

promissory  note  in  writing  of  that  date,  and  then  and  there  deliv- 
ered the  same  to  the  said  plaintiff,  and  thereby  promised  to  pay  the 
said  plaintiff,  or  order,  the  sum  of  $  ,  in  days  after  the  date 
thereof;  and  the  said  plaintiff  avers  that  the  said  E  F,  after  the 
making  of  said  promissory  note,  and  before  the  commencement  of 
this  action,  departed  this  life,  leaving  the  said  defendant  surviving 
him ;  yet  the  said  E  F  did  not  in  his  lifetime  pay  said  sum,  nor 
hath  the  said  defendant  paid  said  sum  of  money,  nor  any  part 
thereof,  to  the  said  plaintiff. 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  together  with  interest  thereon  from  the  day 
of  ,  a.  d.  18     . 


FORMS   OP   PETITIONS.  405 


65.  HUSBAND   AND  WIPE   ON   NOTE   PAYABLE   TO    HER  WHILE   SOLE. 

The  said  A  B,  and  E  his  wife,  plaintiffs,  complain  of  the  said 
C  D,  defendant,  for  that  the  said  C  D,  on  the        day  of  ,  a.  d. 

18  ,  at  (place  of  date,}  made  his  certain  promissory  note  in  writ- 
ing of  that  date,  and  then  and  there  delivered  the  same  to  the  said 
E,  then  being  sole,  but  now  the  wife  of  the  said  A  B,  and  thereby 
promised  to  pay  to  the  said  E,  by  her  then  name  of  E  F,  or  order, 
the  sum  of  8         ,  in  after  the  date  thereof;  yet  the  said  de- 

fendant has  not  paid  said  sum  of  money  to  the  said  plaintiffs,  or 
either  of  them,  nor  any  part  thereof. 

"Wherefore  the  said  plaintiffs  pray  judgment,  etc. 

66.  BY   HUSBAND   ON   NOTE   GIVEN   THE   WIFE   DURING   COVERTURE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  at  (place 

of  date,)  made  his  certain  promissory  note  in  writing  of  that  date, 
and  then  and  there  delivered  the  same  to  E,  then  and  there  and 
still  being  the  wife  of  the  said  plaintiff,  and  for  the  use  and  bene- 
fit of  the  said  plaintiff,  and  thereby  promised  to  pay  to  the  said  E, 
so  being  the  wife  of  said  plaintiff,  or  order,  the  sum  of  $  ,  in 
after  the  date  thereof,  which  period  has  now  elapsed ;  yet 
the  said  defendant  hath  not  paid  said  sum  of  money,  or  any  part 
thereof,  to  the  said  E  or  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the        day  of  ,  a.  d.  18     . 

67.   AGAINST    nUSBAND   AND   WIFE    ON    NOTE    BY   WIFE   WHILE   SOLE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E,  his 
wife,  for  that  the  said  E  heretofore,  whilst  she  was  sole  and  un- 
married, on  the  day  of  ,  a.  d.  18  ,  at  (place  of  date,)  made 
her  certain  promissory  note  in  writing  of  that  date,  and  then  and 
there  delivered  the  same  to  the  said  plaintiff,  and  thereby  prom- 
ised,  by  her  then  name  of  E  F,  to  pay  to  the  said  plaintiff,  or  order, 
tlic  sum  of  3  ,  in  after  the  date  thereof;  and  the  said  E  F 
lias  since  intermarried  with  the  said  C  D  ;  yet  the  said  defendants 
have  not.  nor  hath  either  of  them,  paid  the  said  sum  of  money,  or 
any  part  thereof,  to  the  said  plaintiff. 

Wherefore  ih"  said  plaintiff  prays  judgment  against  the  said 
defendants  for  the  said  sum  of  *  ,  together  with  interest  thereon 
from  the        day  of  ,  a.  d.  18     . 


406  FORMS   OF    PETITIONS. 


68.  EXECUTOR   OR   ADMINISTRATOR   OF   PAYEE    V.    MAKER. 

The  said  A  T5,  executor  (or,  administrator,)  of  E  F,  deceased,  com- 
plains of  the  said  C  D,  defendant,  for  that  the  said  C  D,  in  the  life- 
time of  the  said  E  l\  on  t he  day  of  ,  a.  d.  18  ,  at  (place 
of  date,)  made  his  certain  promissory  note  in  writing  of  that  date 
and  then  and  there  delivered  the  same  to  the  said  E  F,  then  being 
in  full  life,  and  thereby  promised  to  pay  to  the  said  E  F,  or  order, 
the  sum  of  $  ,  in  after  the  date  thereof ;  and  the  plaintiff 
says  that  the  said  E  F  hath,  since  the  making  of  said  promissory 
note  and  before  the  commencement  of  this  action,  departed  this 
life,  and  the  said  plaintiff  hath  been  duly  appointed  executor  (or, 
administrator,)  of  the  estate  of  the  said  E  F  ;  of  all  which  the  said 
defendant  had  notice  ;  yet  the  said  defendant  did  not  pay  said  sum 
of  money  to  the  said  E  F  in  his  lifetime,  nor  hath  he  paid  the  same 
to  the  said  plaintiff  since  the  decease  of  the  said  E  F. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from        day  of  ,  a.  d.  18 

69.  PAYEE   V.    EXECUTOR   OR   ADMINISTRATOR   OF    MAKER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  executor  of  the 
last  will  and  testament  (or,  administrator  of  the  estate,)  of  the 
said  E  F,  defendant,  for  that  the  said  E  F,  in  his  lifetime,  on  the 
day  of  ,  a.  d.  18     ,  at  (place  of  date,)  made  his  certain 

promissory  note  in  writing,  and  then  and  there  delivered  the  same 
to  the  said  plaintiff,  and  thereby  promised  to  pay  to  the  said 
plaintiff,  or  order,  the  sum  of  $  ,  in  after  the  date  there- 

of, which  period  has  since  elapsed  ;  and  the  said  plaintiff  saith  that, 
after  the  making  of  said  promissory  note  and  before  the  com- 
mencement of  this  action,  the  said  E  E  departed  this  life  testate, 
and  that  the  said  defendant  was  duly  appointed  executor  (or,  ad- 
ministrator,) of  the  estate  of  the  said  E  F  ;  and  the  said  plaintiff 
further  saith  that  after  the  qualification  of  said  C  D  as  such  execu- 
tor, (or,  after  the  appointment  and  qualification  of  the  said  C  D  as 
such  administrator,  to  wit,  on  the         day  of  A.  d.  18     ,  and 

before  the  commencement  of  this  suit,  the  said  plaintiff  presented 
said  claims  to  the  said  CD  as  such  executor,  (or,  administrator,) 
and  requested  him  to  allow  the  same  as  a  valid  claim  against  said 
estate,  but  the  said  defendant  refused  to  allow  the  same  as  a  claim 
against  said  estate,  and  wholly  rejected  the  same  ;  yet  the  said  E 
F  did  not  in  his  lifetime  pay,  nor  hath  the  said  plaintiff  since  his 


FORMS   OF   PETITIONS.  407 


decease,  paid  said  sura  of  money,  or  any  part  thereof,  to  the  said 
plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant, as  such  executor,  (or,  administrator,)  for  the  said  sum  of 
8  ,  together  with  interest  thereon  from  the         day  of  , 

a.  d.  18  ,  to  be  levied  and  paid  out  of  the  estate  of  the  said  E  F, 
in  the  hands  of  the  said  defendant  to  he  administered. 

The  above  averment  of  presentation  and  rejection  is  a  necessary 
averment  under  the  law  of  Ohio  and  of  other  States,  -which  have 
the  same  provision.  The  statute  of  Ohio  declares  that  no  action 
shall  be  brought  against  a  personal  representative  until  the  claim 
has  been  presented  and  rejected.  If  the  statute,  as  formerly  was 
the  case  in  Ohio,  only  provided  that  costs  should  not  be  recovered, 
if  suit  was  brought  before  a  certain  time,  then  no  such  averment 
is  necessary.  Costs  are  recoverable  on  a  recovery  on  a  rejected 
claim. 

II. —  On  Bankers'  Checks. 

70.    HOLDER   V.    DRAWER. 

The  said  A  B,  plaintiff,  complains  of  C  D,  defendant,  for  that 
the  said  defendant,  on  the  day  of  ,  a.  d.  18  ,  at  (place  of 
date.)  made  his  certain  draft  or  order  in  writing  of  that  date,  and 
then  and  there  directed  the  said  draft  or  order  to  ,  of  ,  and 
thereby  then  and  there  required  the  said  to  pay  to  the  said 

plaintiff,  or  bearer,  the  sum  of  $  ,  and  then  and  there  deliv- 

ered the  said  draft  or  order  to  the  said  plaintiff;  and  the  said 
plaintiff  avers  that,  alter  the  making  of  the  said  draft  or  order,  and 
before  any  payment  of  the  said  sum  of  money  therein  specified,  the 
said  draft  or  order  was  presented  on  the  dny  of  ,  a.  d.  18  , 
to  the  said  ,  for  payment  thereof,  and  he  was  then  and  there 

requested  to  pay  the  said  sum,  according  to  the  tenor  and  effect 
thereof;  bul  the  said  did  not,  nor  would  at  the  presentation 

lid  draft  or  order  for  payment  as  aforesaid,  or  at  any  time 
afterward,  pay  tin-said  sum  of  money  therein  specified,  or  any  part 
thereof,  bnt  lias  wholly  refused  so  to  do;  whereof  the  said  defend- 
an1  then  and  there  bad  due  and  legal  notice;  yet  the  said  defend- 
ant hath  nol  paid  said  sum  of  money,  or  any  part  thereof,  to  the 
sai<l  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant I'mi- tin- said  sum  of  8  ,  together  with  interest  thereon 
from  the  said  <lay  of         ,  A.  D.  18     . 


408  FORMS   OP   PETITIONS. 


Note. — Interest  becomes  due  from  time  of  demand  and  notice  of 
non-payment. 

III. — Bills  of  Exchange. 

71.    DRAWER   V.    ACCEPTOR. 

The  said  A  B,  plaintiff,  complains  of  the  C  D,  defendant,  for 
that  the  said  plaintiff,  on  the  day  of         ,  a.  d.  18     ,  at  (place 

of  date,)  made  his  certain  bill  of  exchange  in  writing  of  that  date, 
and  then  and  there  directed  the  same  to  the  said  defendant,  and 
thereby  requested  the  said  defendant  ,  after  the  date  thereof, 

to  pay  to  the  said  plaintiff,  or  order,  the  sum  of  $  ,  which  said 
bill  of  exchange  the  said  defendant  afterward,  on  the  day  of  , 
a.  d.  18  ,  upon  sight  thereof  accepted;  yet  the  said  defendant, 
though  said  period  has  long  since  elapsed  for  the  payment  of  said 
bill  of  exchange,  has  not  paid  said  sum  of  money,  or  any  part 
thereof,  to  the  said  plaintiff. 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  together  with  interest  thereon  from  the  day 
of        ,  a.  d.  18     . 

72.    DRAWER    V.     ACCEPTOR    OP     BILL     PAYABLE     AT     A    PARTICULAR 

PLACE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the  day  of  ,  A.  d.  18  ,  at 
(place  of  date,)  made  his  certain  bill  of  exchange  in  writing  of  that 
date,  and  then  and  there  directed  the  same  to  the  said  defendant, 
and  thereby  requested  the  said  defendant,  after  date  thereof, 

to  pay  to  the  said  plaintiff,  or  order,  the  sum  of  $  ;  which  said 
bill  of  exchange  the  said  defendant  afterward,  on  the  day  of  , 
a.  d.  18  ,  upon  sight  thereof  accepted,  payable  at  the  banking- 
house  of  ,  in  ,  and  the  said  plaintiff  avers  that  afterward,  and 
when  said  bill  of  exchange  became  due  and  payable,  on  the  day  of 
,  a.  d.  18  ,  at  the  said  banking-house  of  the  said  ,  in  , 
the  said  bill  of  exchange  was  duly  presented  for  payment  thereof, 
and  payment  thereof  then  and  there  required ;  yet  the  said  defend- 
ant, nor  any  one  for  him,  did  not,  nor  would,  when  said  bill  of  ex- 
change was  so  presented  for  payment,  nor  at  any  time  before  or 
since,  pay  the  said  sum  of  money  therein  specified,  or  any  part 
thereof,  to  the  said  plaintiff,  but  hitherto  hath  wholly  refused  so  to 
do  ;  of  all  which  the  said  defendant  then  and  there  had  due  notice. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 


FORMS   OF   PETITIONS.  409 


fenclant  for  the  said  sum  of  8         ,  together  with  interest  from  the 
day  of  ,  a.  d.  18     . 

73.   DRAWER  V.   ACCEPTOR   ON   A   RETURNED    BILL. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the        day  of  ,  a.  d.  18     ,  at 

(place  of  date.)  drew  his  certain  hill  of  exchange  of  that  date,  and 
then  and  there  directed  the  same  to  the  said  defendants,  and  thereby 
requested  the  said  defendants,  after  the  date  thereof,  to  pay  to 
one  E  F,  or  order,  the  sum  of  8  ,  and  then  and  there  delivered 
the  said  bill  of  exchange  to  the  said  E  F,  which  said  bill  of  ex- 
change the  defendant  afterward,  and  before  the  same  became  due, 
upon  sight  accepted ;  and  the  said  plaintiff  avers  that  afterward, 
and  when  such  bill  of  exchange  became  due  and  payable,  the  said 
bill  of  exchange,  so  accepted  as  aforesaid,  was  presented  to  the 
said  defendant  for  payment  thereof,  and  the  said  defendant  was 
then  and  there  requested  to  pay  said  sum  of  money  therein  speci- 
fied ;  but  the  said  defendant  did  not,  nor  would,  at  said  time,  when 
so  presented  for  payment,  or  at  any  time  since,  pay  the  said  sum 
of  money  therein  specified,  or  any  part  thereof;  and  thereupon, 
on  the         day  of  ,  a.  d.  18     ,  the  said  bill  of  exchange  was 

returned  to  the  said  plaintiff  for  non-payment  thereof;  and  the 
said  plaintiff  was  then  called  upon  and  did  pay  to  the  said  E  F 
the  said  sum  of  8  ,  in  said  bill  specified,  together  with  8 
costs  of  protest,  and  8  ,  damages  for  the  non-payment  thereof; 
of  all  which  the  said  defendant  had  due  notice;  yet  the  said 
defendant,  though  often  requested,  has  not  paid  said  several  sums 
of  money,  or  either  of  them,  or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendant for  the  said  sum  of  8  ,  together  with  interest  I  hereon 
from  the         day  of  ,  A.  d.  18     ,  and  the  said  sum  of  8       , 

costs,  and  the  said  sum  of  8  ,  damages,  so  as  aforesaid  paid,  to- 
gether with  interest  thereon  from  the         day  of  ,  A.  D.  18     . 

On  a  bill  drawn  on  a  person  out  of  the  State,  the  holder  is  en- 
titled to  six  per  cent,  damages  on  its  being  protested  for  oon-pay- 
ment.  Hence  h<'  is  entitled  to  recover  from  the  acceptor  what  he 
has  been  compelled  to  pay  by  reason  of  the  failure  of  the  acceptor 
to  pay.  For  the  law  in  Ohio,  see  Case  v.  Ileffncr,  10  Ohio,  180. 
The  bill  musl  be  protested  to  entitle  the  holder  to  the  statutory 
damages.     A  bill  drawn   in  the  State  on  one  therein  need  not  bo 


410  FORMS  OF   PETITIONS. 

protested.     Demand  and  notice  may  be  proved  by  other  evidence 

than  the  protest. 

74.  payfe  v.  acceptor. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  E  F,  on  the         day  of  ,  a.  d.  18     ,  at  (place  of 

date,)  drew  his  certain  bill  of  exchange  in  writing  of  that  date,  and 
then  and  there  delivered  the  same  to  the  said  plaintiff,  and  thereby 
requested  the  said  defendant  to  pay  to  the  said  plaintiff,  or  order, 
the  sum  of  8  ,  in  after  date  thereof;  which  said  bill  of  ex- 
change the  said  defendant,  on  the  day  of  ,  a.  d.  18  ,  (or, 
then  and  there,)  upon  sight  thereof,  accepted  ;  and  yet  the  said  de- 
fendant, although  said  period  has  long  since  elapsed,  has  not  paid 
said  sum  of  money  therein  specified,  or  any  part  thereof,  to  the 
said  plaintiff,  though  often  requested  so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the        day  of  ,  a.  d.  18     . 

Where  a  bill  is  drawn  or  indorsed  in  the  name  of  a  firm,  it  is  un- 
necessary to  state  the  names  composing  the  firm.  2  Cow.  604 ;  4 
lb.  68.  The  bill  may  be  described  as  drawn  by  A  B  &  Co.,  and 
indorsed  by  A  B  &  Co.  It  is  necessary,  however,  to  state  the  names 
of  a  firm  on  a  bill,  when  the  firm  is  a  plaintiff  or  defendant. 
Cochran  v.  Scott,  5  Wend.  220. 

So,  where  a  bill  is  accepted  by  an  agent,  it  is  sufficient  to  say 
that  A  B,  by  C  D,  drew,  indorsed,  or  accepted  the  bill.  It  is  un- 
necessary to  aver  that  the  agent  had  authority.  Sherman  v.  Corn- 
stock,  2  McLean,  10. 

As  to  a  firm:  that  A  B  &  Co.  drew  a  certain  bill  of  exchange, 
and  that  A  B  &  Co.  indorsed  the  said  bill  of  exchange. 

As  to  bill  by  agent :  that  A  B,  by  C  D,  drew  his  certain  bill, 
etc. ;  that  C  D,  by  E  E,  upon  sight,  accepted ;  that  G  H,  by  I,  in- 
dorsed said  bill  of  exchange. 

75.  PAYEE  V.    ACCEPTOR  AT  A  PARTICULAR  PLACE. 

The  said  A  B,  plaintiff,  complains  of  C  D,  defendant,  for  that 
one  E  E  &  Co.,  on  the         day  of  ,  a.  d.  18     ,  at  (place  of  date,) 

drew  their  certain  bill  of  exchange  in  writing  of  that  date,  and 
then  and  there  delivered  the  same  to  the  said  plaintiff,  and  thereby 
requested  the  said  defendant,  months  after  the  date  thereof,  to 
pay  to  the  said  plaintiff,  or  order,  the  sum  of  S  ;  which  said  bill 
of  exchange  the  said  defendant  then  and  there,  upon  sight  thereof, 


FORMS   OF   PETITIONS.  411 

accepted,  payable  at  the  banking-house  of  ,  in  ;  and 

the  said  plaintiff  avers  that  afterward,  and  when  the  said  bill  of 
exchange  became  due  and  payable,  according  to  its  tenor  and  effect, 
the  said  bill  of  exchange  was  duly  presented  for  payment  at  the 
said  banking-house  of  ,  in  said  ,  and  payment  of  the 

said  sum  therein  specified  duly  required  ;  but  neither  the  said  C  D, 
nor  any  other  person,  on    behalf  of  the  said   defendant,  did  or 
would  pay  the  said  sum  of  money  in  said  bill  specified,  or  at  any 
time  before  or  afterward,  but  wholly  neglected  so  to  do. 
Wherefore  the  said  plaintiff  prays,  etc. 

Note. — There  is  no  necessity  to  aver  or  prove  notice  of  dishonor 
of  the  bill  in  an  action  v.  acceptor.     3  Cow.  261. 

76.    INDORSEE   V.    ACCEPTOR. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
one  E  F,  on  the  day  of  ,  a.  d.  18     ,  at  {place  of  date,) 

made  his  certain  bill  of  exchange  of  that  date,  and  then  and  there 
delivered  the  said  bill  to  one  G  H,  and  thereby  requested  the  said 
defendant,  months  after  date  thereof,  to  pay  to  the  said  G  H, 

or  order,  the  sum  of  $  ,  which  said  bill  of  exchange  the  said 
defendant  afterward,  upon  sight  thereof,  accepted  ;  and  the  said 
G  H  afterward,  and  before  the  said  bill  became  due,  indorsed  and 
delivered  the  same  to  one  L  M,  and  the  said  L  M  then  and  there 
indorsed  and  delivered  the  same  to  one  1ST  O,  and  the  said  X  O  then 
and  there  indorsed  and  delivered  the  same  to  the  said  plaintiff;  yet 
the  said  defendant,  although  said  period  has  elapsed,  has  not  paid 
said  sum  of  money,  nor  any  part  thereof,  although  often  requested 
so  to  do. 

"Wherefore  the  said  plaintiff  prays  judgment,  etc. 

77.    PAYEE    V.    DRAWER   ON    DEFAULT    OF    ACCEPTANCE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  CD,  on  the        day  of  ,  a.  d.     ,  at  {place  of  date,) 

made  his  certain  hill  of  exchange  in  writing  of  that  date,  and  then 
and  there  delivered  the  snuc  to  the  said  plaintiff,  and  thereby  re- 
quested "in'  B  F  to  pay  to  the  said  plaintiff,  or  order,  the  sum  of 
8        .  in  days  (or.  months,)  alter  the  date  thereof;  and  the 

-aid  plaintiff  avers  that,  after  the  making  of  said  hill  of  exchange 
and  before  the  same  became  due  and  payable,  the  said  hill  of  ex- 
change was  presented  to  the  said   E  F  for  his  acceptance  thereof, 

and  the  said   E  P  W&S  then  and  there  requested  to  accept  the  same; 


412  FORMS   OF   PETITIONS. 


but  the  said  B  F  did  not,  nor  would,  at  the  said  presentation  of  said 
bill,  nor  at  any  time  since,  accept  the  same,  or  pay  said  money 
therein  specified,  but  wholly  neglected  so  to  do ;  of  all  which  said 
premises  the  said  defendant  then  had  due  and  legal  notice;  yet  the 
said  defendant  has  not  paid  the  said  sum  of  money,  nor  any  part 
thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment,  etc. 

78.   WHERE  DRAWEE  HAD  NO  EFFECTS  OF  DRAWER,  TO  EXCUSE  NOTICE. 

(Follow  the  last  to  the  averment  of  notice,  and  before  that  insert:) 
and  the  said  plaintiff  avers  that,  at  the  time  of  the  making  of  the 
said  bill  of  exchange,  and  from  thence  and  until  and  at  the  time 
when  the  same  was  presented  for  acceptance  to  the  said  E  F,  he, 
the  said  E  F,  had  no  effects  of  the  said  defendant,  nor  had  he  re- 
ceived any  consideration  from  the  said  defendant  for  the  accept- 
ance or  payment  by  him,  the  said  E  F,  of  the  said  bill  of  exchange  ; 
of  all  which  said  several  premises  he,  the  said  defendant,  then  had 
due  and  legal  notice  ;  yet,  etc.  (as  in  the  last  preceding.) 

79.    PAYEE  V.  DRAWER  ON  DEFAULT  OF  PAYMENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     ,  at 

(place  of  date,)  made  his  certain  bill  of  exchange  of  that  date,  and 
then  and  there  delivered  the  same  to  the  said  plaintiff,  and  thereby 
requested  one  E  F  to  pay  to  the  said  plaintiff,  or  order,  in 
after  the  date  thereof,  the  sum  of  I  ,  which  said  bill  of  exchange 
the  said  E  F  afterward,  and  before  the  same  became  due,  upon 
sight  thereof  accepted  ;  and  the  said  plaintiff  avers  that  afterward, 
on  the  day  when  the  said  bill  of  exchange  became  due  and  paya- 
ble, according  to  the  tenor  and  effect  thereof,  the  said  bill  of  ex- 
change was  presented  to  the  said  E  F  for  the  payment  thereof,  and 
the  said  E  F  was  then  requested  to  pay  the  said  sum  of  money  in 
said  bill  specified,  but  the  said  E  F  did  not,  nor  would,  at  the  said 
presentation  thereof,  or  at  any  time  afterward,  pay  the  said  sum 
of  money  therein  specified,  but  wholly  neglected  so  to  do ;  of  all 
which  the  said  defendant  then  had  due  and  legal  notice ;  yet  the 
said  defendant,  although  often  requested,  has  not  paid  said  sum 
of  money,  nor  any  part  thereof,  to  the  said  plaintiff. 

Wherefore  he  prays  judgment,  etc. 


FORMS   OF   PETITIONS.  413 


80.    FAYEE  V.  DRAWER  OF  BILL  PAYABLE  AT  A  PLACE  CERTAIN. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  C  D,  on  the         day  of  ,  a.  d.  18     ,  at  (place  of 

date.)  made  his  certain  bill  of  exchange  of  that  date,  and  then  and 
there  delivered  the  same  to  the  said  plaintiff,  and  thereby  requested 
one  E  F  to  pay  to  the  said  plaintiff,  or  order,  in  after  the  date 

thereof,  the  sum  of  8  ,  which  said  bill  of  exchange  the  said 

E  F  afterward,  and  before  the  same  became  due  and  payable,  ac- 
cepted, payable  at  the  banking-house  of  ,  in  ,  and  the 
said  plaintiff  avers  that  afterward,  and  on  the  day  when  said  bill 
of  exchange  became  due  and  payable,  the  said  bill  of  exchange  was 
duly  presented  at  the  banking-house  of  the  said  ,  in  , 
for  payment  thereof,  and  payment  thereof  then  and  there  requested, 
but  neither  the  said  (the  bankers)  nor  said  defendant,  nor  any  per- 
son on  behalf  of  the  said  E  F,  did  or  would,  on  the  presentation 
of  said  bill  for  payment,  or  at  any  time  since,  pay  the  said  sum  of 
money  in  said  bill  of  exchange  specified,  or  any  part  thereof;  of  all 
which  said  several  premises  the  said  defendant  had  then  due  and 
legal  notice. 

Wherefore  the  said  plaintiff  prays  judgment,  etc. 

81.    AN  AVERMENT  THAT   DRAWEE    COULD   NOT   BE   FOUND,  TO   EXCUSE 

DEMAND. 

(Follow  the  last  until  the  averment  of  acceptance,  then  proceed :) 
and  the  said  plaintiff  avers  that  afterward,  and  before  the  payment 
of  the  money  in  said  bill  specified,  to  wit,  on  the        day  of  , 

a.  d.  18  ,  and  on  various  other  days  between  that  day  and  the  time 
when  said  bill  of  exchange  became  due,  and  also  on  the  day  when 
the  said  bill  of  exchange  became  due,  diligent  search  and  inquiry 
was  made  after  the  said  E  F,  at  (if  any  place  of  residence  is  stated 
in  the  bill),  and  elsewhere,  in  order  that  the  said  bill  of  exchange 
might  bo  presented  to  the  said  E  F,  for  his  acceptance  and  pay- 
ment thereof;  but  the  said  E  F  could  not  on  search  and  inquiry 
be  found,  nor  hath  he,  at  any  time  since  the  making  of  said  bill 
of  exchange,  hitherto  accepted  tin'  same,  or  paid  the  money  therein 
specified;  of  all  which  the  said  defendant  afterward  had  due  and 
legal  notice;  yet  the  said  defendant  hath  not  paid  said  sum  of 
money,  or  any  part  thereof,  although  often  requested  so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment,  etc. 


41-4  FORMS   OP   PETITIONS. 


82.    AVERMENT    OF    WAIVER    OP    DEMAND   AND    NOTICE. 

(In  lieu  of  the  demand  of  payment,  etc.,  insert:)  and  tho  said 
plaintiff  avers  that  the  said  defendant,  before  the  said  bill  of  ex- 
change became  due,  requested  the  said  plaintiff  not  to  present 
the  same  to  the  said  B  F  for  payment  thereof,  and  wholly  dispensed 
with  and  discharged  the  said  plaintiff  from  the  presentment  of 
the  said  bill  of  exchange  to  the  said  E  F  for  payment  thereof,  and 
that  therefore  he  did  not  present  the  same  to  the  said  E  F  for  pay- 
ment thereof;  (conclude  with  averment  of  non-payment  and  prayer 
for  judgment,  etc.) 

These  forms  will  be  sufficient  to  enable  the  pleader  to  frame  any 
other.  Where  the  suit  is  by  an  indorsee  against  the  maker,  all 
the  averments  are  like  those  v.  acceptor  as  to  drawing,  indorsing, 
and  presenting  the  bill,  with  the  exception  that  it  is  averred  that 
the  defendant  drew  the  bill.  One  more  may  be  given  as  a  speci- 
men of  suit  by  indorsee. 

83.    INDORSEE    V.    INDORSEE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  E  F,  on  the  day  of  ,  A.  D.  18     ,  at  (place  of 

date),  made  his  certain  bill  of  exchange  of  that  date,  <and  then  and 
there  delivered  the  same  to  one  Gr  H,  and  thereby  requested  one 
L  M  to  pay  to  the  said  Gr  H,  or  order,  the  sum  of  $  ,  in 

days  after  the  date  thereof;  which  said  bill  of  exchange  after- 
ward, and  before  the  same  became  due,  the  said  L  M  upon  sight 
thereof  accepted;  and  the  said  Gr  II  then  and  there  indorsed  and 
delivered  the  said  bill  of  exchange  to  the  said  plaintiff,  (or,  to  one 
N  O,  who  then  and  there  indorsed  the  same  to  the  said  plaintiff,) 
and  the  said  plaintiff  avers  that  afterward,  and  on  the  day  when 
the  said  bill  of  exchange  became  due,  the  said  bill  of  exchange 
was  presented  to  the  said  L  M,  and  the  said  L  M  then  was  re- 
quested to  pay  the  sum  of  money  therein  specified,  but  the  said 
L  M  refused  so  to  do,  nor  hath  he,  nor  any  one  else  on  his  behalf, 
nor  hath  the  said  E  F,  nor  any  one  on  behalf  of  the  said  E  F,  paid 
said  sum  of  money,  or  any  part  thereof;  of  all  which  premises 
the  said  defendant  then  had  due  and  legal  notice ;  yet  the  said  de- 
fendant hath  not  paid  said  sum  of  money,  or  any  part  thereof,  to 
the  said  plaintiff. 

Wherefore  he  prays  judgment,  etc. 


FORMS   OF    PETITIONS.  415 


IV.  Actions  against  the  several  Parties  to  a  Note  or  Bill. 

84.    INDORSEE   y.    MAKER   AND   INDORSERS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  G  H, 
L  M,  and  X  O.  defendants,  for  that  the  said  C  D,  on  the  day 

of  ,  A.  d.  18     ,  at  (p'aee  of  date,)  made  his  certain  promissory 

note  in  writing  of  that  date,  and  then  and  there  delivered  the  said 
note  to  the  said  E  P,  and  thereby  promised  to  pay  to  the  said  E  F, 
or  order  ,  in         days  after  the  date  thereof;    and  the  said 

E  F  then  and  there  indorsed  and  delivered  the  same  to  the  said 
G  H,  and  the  said  G  11  then  and  there  indorsed  and  delivered  the 
same  to  the  said  L  M,  and  the  said  L  M  then  and  there  indorsed 
and  delivered  the  same  to  the  said  N  O,  and  the  said  N  O  then  and 
there  indorsed  and  delivered  the  same  to  the  said  plaintiff;  and 
the  said  plaintiff  further  avers  that  he,  the  said  plaintiff,  on  the 
day  when  the  said  promissory  note  was  due  and  payable,  presented 
the  same  to  the  said  C  D,  and  then  and  there  requested  the  said 
C  D  to  pay  the  said  sum  of  money  therein  stated  :  but  that  the  said 
CD  neglected  and  refused,  on  such  request,  to  pay  the  said  sum 
of  money  therein  stated;  of  all  which  the  said  E  F,  G  H,  L  M, 
and  X  O  severally  had  due  and  legal  notice;  yet  the  said  defend- 
ants, or  either  of  them,  have  not  paid  said  sum  of  money,  or  any 
part  thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendants  for  the  sum  of  $  ,  together  with  interest  thereon 

from  the         day  of  ,  a.  d.  18     . 

Xote. — The  code  allows  an  action  to  be  brought  by  a  remote 
indorsee  against  the  maker  and  all  prior  indorsers. 

85.    INDORSEE    V.  ACCEPTOR,  DRAWER,  AND    INDORSKIIS. 

The  said  A  1>,  plaintiff,  complains  of  (he  said  C  D,  E  F,  G  II, 
I.  M.  and    X  O,  defendants,  for  that    the  said   E  F,  on  the  day 

of  .  a.  i).  18     ,  at  (place  Of  date,)  made  his  cerlan.  hill  of  cx- 

cbange  in  writing  of  thai  dale,  and  then  and  there  delivered  the 
-.nil"  to  the  said  (I  II,  and  thereby  requested  the  said  C  D  to 
pay  l'>  the  Said  <J   II.  or  order,  in  days  after  the   date   thereof, 

tin-  -  u  lit  of  S  ;    which  s.'iid  hill  of  exchange  the  said  ('   I>  after- 

ward, upon  Bighl  thereof,  accepted ;  and  the  Baid  <J  II  then  and 
there  indorsed  and  delivered  the  same  to  the  said   L  M,  and  the 

said   l>  M  then  and    there   indorsed   and    delivered    the  sane'  to  the 

said  X  0.  and  the  said  X  o  then  and  there  indorsed  and  delivered 


41 G  FORMS   OF   PETITIONS. 


the  same  to  the  said  plaintiff;  and  the  said  plaintiff  avers  that,  on 
the  day  when  the  said  hill  of  exchange  was  due  and  payable,  the 
same  was  presented  and  shown  to  the  said  C  D  for  payment  thereof, 
and  the  said  C  D  was  then  and  there  requested  to  pay  the  said  sum 
of  money  therein  specified  ;  but  the  said  C  D  did  not,  nor  would 
at  the  said  time  when  said  bill  of  exchange  was  so  presented  for 
payment,  nor  at  any  time  afterward,  pay  the  said  sum  of  money, 
or  any  part  thereof,  but  wholly  neglected  and  refused  so  to  do  ;  of 
all  which  said  several  premises  the  said  E  F,  G  H,  L  K,  and  IS"  O 
afterward  had  due  and  legal  notice;  yet  the  said  defendants,  or 
either  of  them,  have  not  paid  to  the  said  plaintiff  the  said  sum  of 
money,  or  any  part  thereof. 

Wherefore  the  said  plaintiff,  etc. 

Swan  Stat.  630,  sec.  38.  While  this  section  allows  all  the  parties 
to  be  joined,  it  does  not  change  the  nature  of  their  liability;  the 
maker  is  still  the  principal  debtor,  and  the  others  are  sureties  in 
the  order  of  their  being  indorsers.  Alfred  v.  Watkins,  1  Code, 
N.  S.  343 ;  N.  Y.  Code,  1852,  p.  95,  sec.  120,  note.  The  petition  must 
show  that  the  persons  sued  are  parties  to  the  instrument,  and  that 
the  legal  steps  have  been  taken  to  charge  them.  -Hence  the  peti- 
tion must  aver  a  demand  of  the  maker  on  the  day  the  note  was 
due,  and  notice  to  the  indorsers,  and  this  is  necessary  even  if  the 
petition  is  filed  under  section  122  of  the  code.  Swan  Stat.  640,  sec. 
122.  So  held  expressly  in  Bank  of  Geneva  v.  Gulick  et  ah,  8  Pr. 
51,  by  Welles,  J. ;  and  very  decidedly  intimated  by  Marvin.  J.,  in 
Eanney  v.  Smith,  6  Pr.  420;  and  implied  very  clearly  from  the 
case  of  Lord  v.  Cheesebrough,  4  Sandf.  S.  C.  696. 

The  same  rule  applies  to  bills  of  exchange ;  the  petition  must 
show  all  the  facts  necessary  to  show  the  liability  of  the  parties  to 
the  suit. 

V.  Policies  of  Insurance. 

86.    ON   SEA   POLIOY. 

The  said  A  B,  plaintiff,  complains  of  the  said  iEtna  Insurance 
Company,  defendant,  for  that  the  said  defendant,  on  the  day 
of  ,  a.  d.  18     ,  at  (place  where  policy  bears  date,)  caused  to  be 

made  a  certain  policy  of  insurance  of  that  date,  whereby  the  said 
defendant,  in  consideration  of  a  certain  premium  then  paid  by  the 
said  plaintiff  to  the  said  defendant,  then  and  there  caused  the  said 
plaintiff  to  be  insured,  lost  or  not  lost,  in  the  sum  of  $  ,  (here 
set  out  the  policy  in  the  exact  terms  of  it  down  to  the  "  In  witness") 


FORMS   OF   PETITIONS.  417 


And  the  said  plaintiff  saith  that  he  did  ship  on  board  of  the  said 
,  the  said  goods  and  merchandise  in  the  said  policy  men- 
tioned, to  wit,  (here  describe  them  as  near  as  conveniently,  or  as  de- 
scribed in  the  policy,)  of  the  value  of  8  ,  to  be  carried  and 
conveyed  therein  from  the  said  port  of  to  the  said  port 
of  ,  as  is  in  the  said  policy  stated ;  and  the  said  plaintiff 
avers  that  he  Was  the  owner  of  said  goods  and  merchandise  at 
the  time  of  the  making  of  the  said  policy  of  insurance,  and  from 
thence  hitherto,  until  the  loss  thereof,  as  hereinafter  set  forth,  and 
that  the  said  goods  and  merchandise  were  of  a  greater  value  than 
the  sum  mentioned  in  said  policy ;  and  the  said  plaintiff  further 
saith  that  said  vessel  (or,  steamboat,)  did,  on  tho  day  of  , 
a.  d.  18  ,  with  the  said  goods  and  merchandise  on  board  thereof, 
depart  and  set  sail  from  aforesaid,  on  her  said  voyage  toward 
the  port  of  aforesaid  ;  and  that  afterward,  and  while  said 
vessel  (or,  steamboat,)  was  proceeding  on  her  said  voyage,  and  be- 
fore her  arrival  at  the  said  port  of  ,  to  wit,  on  the  day 
of  ,  a.  d.  18  ,  the  said  vessel  (or,  steamboat,)  was,  with  the 
said  goods  and  merchandise  of  the  said  plaintiff  on  board,  by  the 
perils  and  dangers  of  the  seas,  (or  lake,  or  river,  as  the  case  may 
be.)  wholly  lost,  and  the  said  goods  and  merchandise  of  the  said 
plaintiff,  on  board  thereof,  became  and  were  sunk  and  wholly  lost 
to  the  said  plaintiff,  and  never  did  arrive  at  aforesaid  ;  of 
all  which  the  said  defendant,  afterward,  on  the  day  of  , 
a.  d.  18  ,  had  notice,  and  was  then  requested  by  the  said  plaintiff 
to  pay  him  the  said  sum  of  $  ,  so  as  aforesaid  by  said  defend- 
ant insured  on  said  goods  and  merchandise;  yet  the  said  defendant 
hath  not  paid  said  sum  of  $  ,  or  any  part  thereof,  to  the  said 
plaintiff,  to  the  damage  of  the  said  plaintiff  of  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

87.   LOSS  BY   BEING   RUN  INTO. 

(Follow  86  to  the  averment  of  loss,  then  proceed:)  and  the  said 
plaintiff  avers  that,  whilst  the  said  ship  or  vessel  in  said  policy 
named,  with  the  said  goods  and  merchandise  on  board  thereof,  was 
proceeding  on  her  said  voyage,  and  before  her  arrival  at  her  said 
]">rt  of  destination  in  the  said  policy  of  insurance  mentioned,  a 
certain  other  vessel  (or,  steamboat,)  with  great  force  and  violence 
was  carried  against  and  ran  foul  of  the  said  ship  in  said  policy 
named,  and  the  same  thereby  then  became  and  was  sunk  and  lost, 
vol.  i — 27 


418  FORMS   OP  PETITIONS. 


with  the  said  goods  and  merchandise  of  the  said  plaintiff  so 
shipped  thereon,  and  said  goods  and  merchandise  thereby  became 
and  were  wholly  lost  to  the  said  plaintiff;  of  all  which  said  several 
premises  the  said  defendant,  etc.  (as  in  86.) 

88.    ON   FIRE   POLICY. 

The  said  A  B,  plaintiff,  complains  of  the  said  iEtna  Insurance 
Company,  defendant,  for  that  the  said  defendant,  in  consideration 
of  a  certain  premium,  by  and  between  the  said  plaintiff  and  de- 
fendant agreed  upon,  and  by  the  said  plaintiff  then  paid,  to  wit, 
the  sum  of  $         ,  on  the  day  of  ,  A.  D.  18     ,  at  , 

did,  by  a  certain  policy  of  insurance  of  that  date,  duly  executed, 
insure  the  said  plaintiff  against  loss  or  damage  by  fire  to  the 
amount  of  $  (here  copy  the  whole  policy,  not  including  the  at- 

testation and  signing) ;  and  the  said  plaintiff  further  saith  that,  at 
the  time  of  the  date  of  said  policy  of  insurance,  the  said  plaintiff 
was  the  owner  of  the  said  dwelling-house  and  the  said  furniture, 
etc.,  (as  stated  in  policy,)  and  so  continued  from  thence  up  and 
until  the  time  of  the  said  loss  hereinafter  mentioned ;  and  the  said 
plaintiff  further  saith  that  he  has  duly  kept,  observed,  and  per- 
formed all  the  requirements  and  conditions  contained  in  said  pol- 
icy, and  in  the  schedule  thereto  attached,  by  him,  the  said  plaintiff, 
to  be  kept,  observed,  and  performed  in  that  behalf;  and  the 
plaintiff  further  avers  that  afterward,  on  the         day  of  , 

a.  d.  18  ,  the  said  dwelling-house  and  the  said  furniture,  (or, 
goods,  as  in  policy,)  named  in  said  policy,  became  and  were  con- 
sumed and  wholly  destroyed  by  fire ;  of  all  which  the  said  defend- 
ant afterward,  to  wit,  on  the  day  of  ,  a.  d.  18  ,  had  due 
and  legal  notice ;  and  the  said  plaintiff  farther  saith  that  he  has 
been  damaged  by  the  burning  of  the  said  dwelling-house  and  fur- 
niture to  the  amount  of  the  said  sum  of  $  ,  and  over ;  yet  the 
said  defendant,  although  the  said  plaintiff  has  duly  done  and  per- 
formed, all  and  singular,  the  requirements  and  conditions  by  said 
policy,  and  the  schedule  thereto  attached,  required  to  be  done  and 
performed  by  the  said  plaintiff,  to  entitle  him  to  the  payment  of 
said  amount  of  loss  so  sustained  by  said  plaintiff,  and  to  render  the 
said  defendant  liable  to  pay  the  same,  not  regarding  his  said  duty 
in  the  premises,  did  not,  nor  would  pay  the  said  sum  of  $  ,  nor 
any  part  thereof,  to  the  said  plaintiff,  but  hitherto  and  still  refuses 
so  to  do,  to  the  damage  of  the  said  plaintiff  of  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 


FORMS   OP   PETITIONS.  419 


defendant  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained. 

The  general  averment  of  the  performance  of  conditions  is  suffi- 
cient under  the  code.  Swan's  Stat,  640,  sec.  121.  "  In  pleading 
the  performance  of  conditions  precedent  in  a  contract,  it  shall  he 
sufficient  to  state  that  the  party  duly  performed  all  the  conditions 
on  his  part."  The  defendant  can  then  take  issue  on  the  perform- 
ance of  any  of  the  conditions  stated  in  the  contract.  Hence  all  the 
conditions  must  be  set  forth,  and  in  this  case,  not  only  the  policy, 
hut  the  schedule  attached  to  the  policy,  should  be  set  out  in  the 
petition. 

Where  a  policy  has  a  condition  that  the  insured,  in  case  of  a 
loss,  shall  give  immediate  notice  thereof,  and  within  three  calendar 
months  deliver,  under  his  hand,  accounts  exhibiting  the  loss  sus- 
tained, etc.,  the  insui*ed  is  not  entitled  to  recover  unless  he  has  so 
made  out  the  accounts  within  the  three  months.  Mason  v.  Harvey, 
20  Eng.  L.  &  Eq.  541.  So,  where  he  was  to  get  the  certificate  of  a 
minister  as  to  the  loss,  he  can  not  recover  unless  he  can  obtain 
such  certificate.  Worsley  v.  Wood,  6  Term,  710;  S.  C,  2  H.  Bl. 
574.  The  same  doctrine  is  recognized  in  Moore  v.  Protection  Ins. 
Co.,  29  Maine,  97.  But  if  the  party  has  once  submitted  to  an  ex- 
amination, where  that  is  required,  he  has  fulfilled  the  condition, 
even  if  he  refuses  to  be  further  examined.     lb. 

This  defense,  in  20  Eng.  L.  &  Eq.  541,  -was  set  up  by  a  plea  Bet- 
ting forth  the  condition;  hence  it  seems  it  need  not  be  stated  in 
the  declaration. 

VI.  On  Awards. 

89.    ON   PAROL    SUBMISSION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  before  the  making  of  the  promises  of  the  said  defendant  here- 
inafter mentioned,  certain  differences  and  disputes  had  arisen  and 
were  depending  between  the  said  plaintiff  and  the  said  defendant, 
touching  and  concerning  certain  dealings  before  that  time  had  by 
and  between  the  said  parties;  and  thereupon,  for  the  putting  an 
end  to  said  differences  and  disputes,  the  said  plaintiff  and  the  said 
defendant,  on  the        day  of  ,  a.  n.  18    ,  respectively  sub- 

mitted  themselves  to  the  award  of  one  E  Y,  to  he  made  between 
tlieni  of  ami  concerning  the  said  differences  and  disputes;  ami  in 
consideration  thereof,  and  that  the  said  plaint  iff  at  the  requesl  of  the 
said  defendant,  had  then  ami  there  promised  the  said  defendant  to 


420  FORMS   OP   PETITIONS. 


perform  the  award  of  the  said  E  F,  to  be  so  made  between  the  said 
plaintiff  and  the  said  defendant,  of  and  concerning  the  said  differ- 
ences  and  disputes,  in  all  things  therein  contained,  on  the  said 
plaintiff's  part  in  that  behalf  to  be  performed,  he,  the  said  defend- 
ant, promised  the  said  plaintiff  to  perform  the  said  award  in  all 
things  therein  contained,  on  the  behalf  of  said  defendant  to  be 
performed.  And  the  said  plaintiff  saith  that  the  said  B  F,  having 
taken  upon  himself  the  burden  of  the  said  arbitrament,  did,  on 
the        day  of  ,  a.  D.  18     ,  (date  of  the  award,)  make  his 

certain  award  between  the  said  plaintiff  and  the  said  defendant,  of 
and  concerning  the  said  differences  and  disputes,  and  did  thereby 
award  that,  (here  set  forth  the  award  in  words,  or  according'to  its 
legal  effect,  and  then  aver  a  non-performance  of  his  part ;  if  there  are 
any  acts  to  be  done  by  the  plaintiff  before  he  has  a  right  to  recover  ivhat 
he  sues  for,  performance  of  all  such  acts  must  be  averred  preceding  an 
averment  of  the  default  of  the  defendant,)  the  said  defendant  should, 
on  the  day  of  ,  a.  d.  18     ,  pay  to  the  said  plaintiff  the 

sum  of  $  ,  in  full  satisfaction  and  discharge  of  the  said  matters 
in  difference  and  dispute ;  of  which  said  award  the  said  defendant 
then  and  there  had  notice ;  and  the  said  plaintiff  saith  that,  on  the 
said        day  of  ,  a.  d.  18     ,  he,  the  said  plaintiff,  requested  the 

said  defendant  to  pay  him,  the  said  plaintiff,  the  said  sum  of  $  , 
according  to  the  tenor  and  effect  of  said  award ;  yet  the  said  de- 
fendant did  not,  nor  would,  when  so  requested  as  aforesaid,  or  at 
any  time  since,  pay  the  said  sum  of  $  ,  or  any  part  thereof,  but 
to  do  so  hath  hitherto  wholly  refused. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

Parol  submission  is  binding.  1  Saund.  28 ;  8  Term,  571 ;  5  East, 
139  ;  Shepherd  v.  Watrous,  3  Caine,  1G6  ;  Mitchell  v.  Bush,  7  Cow. 
187  ;  Titus  v.  Scantling,  4  Blackf.  89  ;  6  Dana,  9.  On  a  parol  sub- 
mission, the  award  can  not  be  made  a  rule  of  court.  Shearer  v 
Mooers,  19  Pick.  308. 

As  to  whether  an  averment  of  notice  is  necessary,  see  2  Saund. 
62,  a,  n.  4 ;  9  Mass.  198 ;  7  B.  &  C.  494. 

Where  the  award  provided  that  on  payment  a  release  should 
be  given,  it  was  held  necessary  to  aver  a  tender  of  the  release  when 
demanding  the  money.  Huggy  v.  Collins,  3  Har.  291.  Where, 
however,  moneys  are  directed  to  be  paid  by  one  to  the  other  simply, 
no  demand  is  necessary.  Nichols  v.  Bensselaer  Ins.  Co.  22  Wend.  125 


FORMS   OP   PETITIONS.  421 


90.    ON   AN   AWARD   WHERE    SUBMISSION    IS   BY   DEED    OR   BOND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  certain  differences  having  arisen  and  being  depending  be- 
tween the  said  plaintiff  and  the  said  defendant,  the  said  plaintiff 
and  defendant  entered  into  certain  articles  of  agreement,  under 
their  respective  seals,  to  submit  such  differences  to  the  arbitrament 
of  ,  and  which  agreement  is  to  the  substance  and  effect  fol- 

lowing, that  is  to  say  :  {here  set  out  the  agreement  to  arbitrate,  either 
literally  or  in  its  legal  effect.)  And  the  said  plaintiff  further  saith 
that  the  said  E  F,  etc.,  (the  arbitrators  named,)  having  taken  upon 
themselves  the  burden  of  the  said  arbitration,  did,  in  due  manner 
and  within  the  time  limited  for  that  purpose  in  said  agreement,  on 
the        day  of  ,  a.  d.  18     ,  (date  of  the  award,)  duly  make 

and  publish  their  award  in  writing,  subscribed  with  the  proper 
hand  of  each  of  said  arbitrators  of  and  concerning  the  said  mat- 
ters in  difference  between  the  said  parties,  ready  to  be  delivered  to 
the  said  parties,  or  to  such  of  them  as  should  desire  the  same,  and 
bearing  date  the  said  day  of  •  ,  a.  d.  18  ,  and  did  thereby 
award  and  direct  (here  set  out  the  award,  or  so  much  as  is  necessary 
to  show  the  plaintiffs  right  to  recover  what  he  claims,  and  then  aver 
a  performance  of  all  acts  to  be  done  by  plaintiffs  conditions  precedent 
to  his  right  to  demand  what  he  sues  for,  and  then  aver  a  non- 
performance by  the  defendant  of  his  part  of  the  award;  what  follows 
will  illustrate  what  is  meant:)  that  the  said  plaintiff  should  deliver 
to  the  said  defendant  a  certain  note  of  hand,  given  by  one 
to  the  said  defendant,  and  which  note  was  then  in  the  hands  of 
said  plaintiff,  and  that  said  defendant  should  then  pay  to  the  said 
plaintiff  the  sum  of  $  ,  and  the  plaintiff  avers  that  afterward, 
to  wit,  on  the       day  of  ,  a.  d.  18     ,  he  did  tender  and  offer  to 

the  said  defendant  the  said  note  of  hand  above  described,  and 
then  and  there  requested  the  said  defendant  to  pay  the  said  sum  of 
8  ,  in  said  award  named,  to  the  said  plaintiff;  but  the  said  de- 
fendant then  and  there  refused  to  receive  the  said  note  of  hand 
and  did  not,  nor  would  pay  the  said  sum  of  $  ,  but  hitherto 
hath  wholly  refused  to  to  do  ;  and  the  said  plaintiff  brings  here  into 
court  lli<!  said  note  of  hand,  ready  to  be  delivered  to  the  said  de- 
fendant whenever  he  will  receive  the  same. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant  lor  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18    . 


422  FORMS   OF   PETITIONS. 


An  award  need  not  bo  under  seal  unless  required  to  be  by  the 
article  of  submission. 

The  award  must  show  that  the  arbitrators  met  at  the  place  spec- 
ified in  the  submission.  Strum  v.  Cunningham,  3  Ohio,  286.  It 
must  bo  final.  Thomas  v.  Moler,  3  Ohio,  266.  So  where  the 
award  directed  notes  to  be  given  by  a  party,  with  such  security  as 
certain  persons  named  should  approve  of,  it  was  held  not  to  be 
final  and  void,  because  something  was  yet  to  be  done;  the  security 
was  to  be  approved  of.     Maxon  v.  Payne,  Nash's  Dig.  24,  sec.  5. 

VII.  For  Forbearance  of  Debts  due. 

91.  TO  PAY  FOR  FORBEARANCE  OF  DEFENDANT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  before  the  making  of  the  promise  of  the  said  defendant 
hereinafter  mentioned,  the  said  plaintiff  had  commenced  a  certain 
action  against  the  said  defendant  in  the  Court  of  Common  Pleas, 
within  and  for  the  county  of  ,  for  the  recovery  of  certain 

money  then  claimed  by  the  said  plaintiff  to  be  due  and  owing  to 
him  from  the  said  defendant;  and  whilst  the  said  action  was  still 
pending  in  said  court,  in  consideration  that  the  said  plaintiff  would 
dismiss  and  discontinue  his  said  action  at  the  costs  of  him,  the  said 
plaintiff,  the  said  defendant  did,  on  the        day  of  ,  A.  D.  18     , 

promise  the  said  plaintiff  to  pay  him,  the  said  plaintiff,  the  sum  of 
$  ,  in  full  discharge  and  payment  of  the  said  claim  of  the  said 
plaintiff  against  the  said  defendant,  in  days  after  the  said 
action  should  be  so  dismissed  and  discontinued  ;  and  the  said 
plaintiff  avers  that  he  did  then  and  there  agree  to,  and  did  then 
and  there  dismiss  and  discontinue  the  said  action  at  his,  the  said 
plaintiff's  own  costs  and  charges ;  and  that  he  did  then  and  there 
notify  said  defendant  that  said  action  had  been  so  dismissed, 
whereby  the  said  defendant  became  liable  to  pay  said  sum  of  8  , 
in        days  from  and  after  the  said        day  of  ,  A.  D.  18     ;  yet 

the  said  defendant  hath  not  paid  said  sum  of  8  ,  or  any  part 
thereof,  to  the  said  plaintiff,  although  said  period  is  elapsed,  and 
said  defendant  has  been  often  requested  so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

92.  FOR  FORBEARANCE  TO  A  THIRD  PERSON. 

The  said  A.  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  E  F,  before  and  at  the  time  of  the  making  of  the 


FORMS   OF   PETITIONS.  423 


promise  of  the  said  defendant  hereinafter  mentioned,  was  indebted 
to  the  said  plaintiff  in  the  sum  of  8         ,  and  thereupon,  on  the 
day  of  ,  A.  D.  18     ,  in  consideration  of  the  premises,  and 

that  the  said  plaintiff,  at  the  request  of  the  said  defendant,  would 
forbear  and  give  time  to  the  said  E  F,  for  the  payment  of  the  said 
sum  of  8       ,  until  the       day  of  ,  a.  d.  18     ,  (this  must  agree 

with  facts,)  he,  the  said  defendant,  then  and  there  promised  the 
said  plaintiff  to  pay  him  the  said  sum  of  8  ,  in  case  the  said 
E  F  should  not,  on  or  before  the  said        day  of  ,  a.  d.  18     , 

pay  to  the  said  plaintiff  the  said  sum  of  8  ,  (let  this  statement 
agree  icith  the  facts.)  And  the  said  plaintiff  avers  that,  confiding 
in  the  said  promise  of  the  said  defendant,  he  did  forbear  and  give 
time  to  the  said  E  F  for  the  payment  of  the  sum  of  8  ,  until 
the  said        day  of  ,  a.  d.  18     ;  yet  the  said  E  F  did  not  nor 

would  pay  the  said  sum  of  8  to  the  said  plaintiff  on  or  before  the 
said        day  of  ,  a.  d.  18     ,  nor  hath  he  since  paid  said  sum  ; 

of  all  which  the  said  defendant  afterward,  on  the  said        day  of 
,  a.  d.  18     ,  had  notice ;  yet  the  said  defendant  hath  not  paid 
said  sum  of  money,  or  any  part  thereof,  to  the  said  plaintiff. 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  together  with  interest  thereon 
from  the  said        day  of  ,  a.  d.  18     . 

VIII.  On  Warranties. 

93.   WARRANTY   OF   HORSES   AND   CATTLE   TO   BE   SOUND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  in 

consideration  that  the  said  plaintiff,  at  the  request  of  the  said  de- 
fendant, would  buy  of  the  said  defendant  a  certain  horse,  (cow,  ox, 
sheep,  mule,  jack,  etc.,)  at  and  for  a  certain  price  or  sum  of  money, 
to  wit,  for  the  sum  of  8  ,  to  bo  therefor  paid  by  the  said  plaint- 
iff, he,  the  said  defendant,  then  promised  the  said  plaintiff  that  the 
said  horse,  (or,  cow,  etc.,)  was  sound,  (or,  free  from  vice,  or,  broken 
to  draw,  gentle  in  harness,  a  good  saddle-horse,  or  any  other  par- 
ticular wherein  the  animal  is  warranted;  as,  that  a  coio  was  a  good 
milker  and  would  give  per  day  a  certain  quantity  of  milk.  The  war- 
ranty must  be  stated  according  to  the  fact.)  And  the  said  plaintiff 
avers  that  he,  confiding  in  the  promise  of  the  said  defendant,  did 
then  buy  the  said  horse,  (or,  other  animal,  as  the  case  is,)  of  tho 
said  defendant,  and  then  paid  him  therefor  the  said  sum  of  8        ; 


424  FORMS   OF  PETITIONS. 


yet  the  said  defendant  did  not  perform  his  said  promise ;  fur  that 
the  said  horse  at  the  time  of  making  said  promise  was  not  sound, 
hut  unsound,  and  hecamo  of  no  use  to  the  said  plaintiff,  and  the 
said  plaintiff  hath  been  put  to  expense  in  feeding,  keeping,  and 
taking  care  of  said  horse,  amounting  to  the  sum  of  $  ;  and  the 
said  plaintiff  avers  that  ho  hath  sustained  damages  by  reason 
thereof  to  the  sum  of  3 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $        ,  his  damages  so  as  aforesaid  sustained. 

94.    ON   AN    EXECUTED   CONSIDERATION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  on  the         day  of  ,  a.  d.  18     ,  in  consideration  that  the 

said  plaintiff,  at  the  request  of  the  said  defendant,  had  then  bought 
of  the  said  defendant  a  certain  horse,  (or,  cow,  etc.,)  at  and  for  a 
certain  price  then  agreed  upon  between  the  said  plaintiff  and  the 
said  defendant,  he,  the  said  defendant,  then  promised  the  said 
plaintiff  that  the  said  horse,  (or,  other  animal,)  at  the  time  of  the 
said  sale  thereof,  was  sound ;  yet  the  said  plaintiff  saith  that,  at  the 
time  of  said  sale,  the  said  horse  was  not  sound,  but  unsound,  and 
became  wholly  useless  and  of  no  value  to  the  said  plaintiff; 
whereby  the  said  plaintiff  has  sustained  damages  to  the  sum  of 
§         ,  as  he  avers. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained. 

95.    WARRANTY   ON   AN   EXCHANGE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  on  the         day  of  ,  a.  d.  18     ,  in  consideration  that  the 

said  plaintiff,  at  the  request  of  the  said  defendant,  would  deliver  to 
the  said  defendant  a  certain  horse,  (or,  other  animal,  as  the  case  may 
be,)  of  the  said  plaintiff,  of  the  value  of  $  ,  in  exchange  for  a  cer- 
tain mare  of  the  said  defendant,  he,  the  said  defendant,  then  prom- 
ised the  said  plaintiff  that  the  said  mare  of  the  said  defendant  was 
then  sound ;  and  the  said  plaintiff  avers  that  he,  confiding  in  the 
said  promise  of  the  said  defendant,  did  afterward  then  deliver  to 
the  said  defendant  the  said  horse  of  the  said  plaintiff,  (if  any  money 
was  paid,  add :  and  paid  to  the  said  plaintiff  the  sum  of  $  ,) 
in  exchange  for  the  said  mare  of  the  said  defendant;  and  the  said 
plaintiff  avers  that,  at  the  time  of  the  said  exchange,  the  said  mare 
of  the  said  defendant  was  not  sound,  but,  on  the  contrary,  was 


FORMS   OP   PETITIONS.  425 


unsound  ;  whereby  the  said  plaintiff  has  sustained  damages  to  the 
amount  of  8 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  S         ,  his  damages  so  as  aforesaid  sustained. 

These  forms  can  be  applied  to  any  description  of  warranty — of 
tilings,  goods,  and  chattels,  as  well  as  of  animals.  The  warranty, 
being  a  contract,  must  be  correctly  described,  and  be  as  comprehen- 
sive as  the  breach  complained  of;  all  exceptions  must  also  be  set 
out.  Therefore,  if  a  horse  be  warranted  sound,  except  a  kick  in  the 
leg,  the  exception  must  be  stated.     4  B.  &  C.  445. 

The  vendor  of  personal  property  warrants  the  title  to  it.  This 
the  law  implies.  Darst  v.  Brockway,  11  Ohio,  462 ;  3  Term,  57; 
Chancellor  v.  Wiggins,  4  B.  Mon.  201.  Nor  will  the  implication 
be  excluded,  when  the  sale  is  made  by  a  deed  without  warranty. 
Trigg  v.  Faris,  5  Humph.  343,  496  ;  Kingsbury  v.  Taylor,  29  Maine, 
508 ;  2  Sand.  S.  C.  89. 

A  good  price  does  not  imply  a  warranty  on  soundness.  2  East, 
314;  4  Camp.  144;  9  Porter,  104;  Welsh  v.  Carter,  1  Wend.  185; 
Dresses,  v.  Ainsworth,  9  Barb.  619.  This  rule  does  not  apply 
where  the  property  is  not  in  the  possession  of  the  vendor  at  the 
time  of  sale.  Edick  v.  Crim,  10  Barb.  445.  Where,  however,  an  ar- 
ticle is  sold  to  be  used  fur  a  particular  purpose,  there  is  an  implied 
warranty  that  it  will  answer  for  that  purpose,  at  least  against  all 
defects  not  visible.  Brenton  r.  Davis,  8  Blackf.  317  ;  8  lb.  518. 
Dickson  v.  Jordan,  11  Ired.  272,  seems  contra.  This  last  was  the 
sale  of  a  rope,  which  turned  'out  not  fit  for  the  purpose  for  which 
bought.  Yet  if  the  vendee  asks  for  a  carriage-horse,  the  vendor 
undertakes  impliedly  that  he  is  a  carriage-horse.  2  Chit.  PI.  278; 
5  Bing.  544 ;  4  Camp.  169 ;  6  Taunt.  108  ;  4  B.  &  C.  115. 

A  warranty  may  be  implied  from  the  production  of  a  sample. 
4  Camp.  22,  144,  169;  4  B.  &  A.  387;  3  Starkie,  32.  The  vendor 
ii  responsible  that  the  bulk  of  the  commodity  shall  be  equal  to  the 
sample  in  quality.  Andrews  v.  Kneeland,  6  Cowen,  354 ;  Oneida 
Maim i'  Co.  v.  Lawrence,  4  lb.  440;  Bradford  v.  Manley,  13  Mass. 
180;  Gallagher  y.  Waring,  9  Wend.  20;  12  lb.  413,  506;  Williams 
V.  Spofford,  8  Pick.  250. 

A  genera]  warranty  will  not  extend  to  defects  that  are  plain  and 
obvious  to  the  senses  of  the  purchaser.  2  Bla.  Com.  165  ;  1  Salk. 
211  ;  2  Bing.  L83;  5  B.  &  A.  240;  3  Camp.  154. 

The  particular  description  of  unsoundness  need  not  be  Btated. 
2  Chit.  PI.  280;  Com.  Dig.  Pleader,  C.  45;  2  Saund.   181,  b\  3 


426  forms  op  petitions. 


Term,  307  ;  1  Chit.  PI.  291.  And  where  even  special  defects  were 
staled,  it  was  held  that  other  defects  might  ho  shown  under  the 
general  averment  of  unsoundness.     Fleming  v.  Toler,  7  Grat.  310. 

96.   ON   WARRANTY   TO    PACK    UP  MEAT   OR   HAMS   FOR  A  PARTICULAR 

MARKET. 

The  said  A  23,  plaintiff,  complains  of  the  said  C  D,  defendant,  foi 
that  on  the  day  of  ,  A.  d.  18  ,  in  consideration  thatthesaid 
plaintiff,  at  the  request  of  the  said  defendant,  had  then  promised 
the  said  defendant  to  buy  of  the  said  defendant,  (here  describe  goods 
generally,  as,  bai'rels  of  pork,  tierces  of  shoulders,  1,000  hams,  etc.,) 
for  a  certain  price  then  agreed  upon  between  the  said  plaintiff  and 
the  said  defendant,  amonnting  to  $  ,  he,  the  said  defendant, 

then  promised  the  said  plaintiff  to  furnish  said  goods  and  merchan- 
dise as  aforesaid,  properly  preserved  and  packed  up  for  the  English 
market,  and  to  put  the  same  up  properly  for  a  voyage  to  the  said 
English  market;  and  the  said  plaintiff  avers  that,  confiding  in  the 
said  promise  of  the  said  defendant,  he,  the  said  plaintiff,  did  then 
buy  of  the  said  defendant  (here  set  forth  the  goods  bought,)  as  and 
for  the  same  goods  and  merchandise  so  agreed  to  be  bought  as  afore- 
said, and  which  the  said  defendant  then  supplied  and  furnished  to 
the  said  plaintiff,  as  and  for  such  goods  and  merchandise  ;  yet  the 
said  plaintiff  saith  that  the  said  defendant  did  not,  nor  would  fur- 
nish such  goods  and  merchandise  fit  to  be  sent  to  the  English  mar- 
ket as  aforesaid,  or  pack  them  properly  for  the  said  voyage ;  but 
the  said  plaintiff  saith  that  the  goods  and  merchandise  were  so 
negligently  and  improperly  preserved  and  put  up,  that  by  reason 
thereof,  the  same  were  wholly  unfit  for  the  purpose  aforesaid,  and 
the  said  plaintiff  thereby  lost'all  benefit  thereof,  and  was  put  to  the 
expense  of  $  ,  in  and  about  the  shipping  and  conveying  the 

same  to  the  said  English  market  as  aforesaid ;  whereby  the  said 
plaintiff  has  sustained  damages,  as  he  avers,  to  the  amount  of  $     . 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained. 

97.    ON   WARRANTY   OF    MILLSTONES. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  in  consideration  that  the  said  plaintiff,  at  the  request  of  the 
said  defendant,  would  buy  of  him  the  said  defendant,  a  certain  pair 
of  French  buhr  millstones,  four  feet  in  diameter,  made  by  W.  W. 
Wallace,  of  the  city  of  Pittsburg,  at  and  for  a  certain  price  then 
agreed  upon  by  and  between  the  said  plaintiff  and  defendant,  he, 


FORMS   OF   PETITIONS.  427 

the  said  defendant,  promised  the  said  plaintiff  that  the  said  mill- 
stones were  then  good  both  in  quality  and  workmanship  ;  and  the 
said  plaintiff  avers  that,  confiding  in  said  promise  of  the  said  de- 
fendant, he  did  then  buy  the  said  millstones  of  the  said  defendant ; 
and  the  said  plaintiff  saith  that  the  said  millstones  were  not  then 
good  both  in  quality  and  workmanship,  but  were  defective  and 
became  useless  to  the  said  plaintiff;  to  his  damage  $ 

The  said  plaintiff,  therefore,  prays  judgment  against  the  said  C 
D  for  the  said  sum  of  $  ,  his  damages  so  sustained. 

;N"ote. — The  price  or  amount  paid  for  the  article  warranted  need 
not  be  stated ;  but  if  stated  it  must  be  proved  as  stated.  McMil- 
lan v.  Theaker,  12  Ohio,  24;  3  Bing.  472;  1  Term,  447;  2  Lord 
Eaymond,  792  ;  1  Chit.  PL  326  ;  3  Term,  67  ;  3  M.  &  S.  173  ;  6 
East,  563;  13  lb.  102  ;  3  Day,  312.  Breach  may  be  assigned  as 
broad  as  the  covenant.     1  Hall,  33. 

IX.  Relating  to  the  Sale  of  Real  Estate. 

98.    AGAINST    VENDOR   OF   REAL   ESTATE    SOLD    AT    AUCTION    FOR   NOT 
MAKING   A    GOOD    TITLE. 

The  said  A  B,  plaintiff,  complains  of  the  said,  C  D,  defendant, 
for  that  the  said  defendant,  on  the  day  of  ,  a.  d.  18      , 

caused  to  be  put  up  and  exposed  to  sale,  by  public  auction,  the  fol- 
lowing real  estate ;  that  is  to  say  :  (here  describe  the  premises  as  in 
particulars  of  sale,")  upon  and  subject  to  the  following  conditions; 
that  is  to  say :  (here  set  out  any  conditions  which  may  have  reference  to 
the  plaintiff's  claim  as  they  appear  in  the  particulars  of  sale ;  set  them 
out  in  the  past  tense ;)  that  the  purchaser  should  pay  to  the  vendor, 
or  his  agent,  a  deposit  of  $  per  cent,  in  part  of  the  purchase 

money,  and  should  likewise  pay  one-half  of  the  auction  duty,  and 
should  pay  the  residue  of  the  purchase  money,  and  complete  the 
purchase  on  or  before  the        day  of  then  next,  and  that  a 

good  title  should  be  made  out  at  the  expense  of  the  vendor;  and 
upon  payment  of  tho  residue  of  the  purchase  money,  a  proper  con- 
veyance at  the  expense  of  tho  purchaser.  And  the  said  plaintiff 
saith  thai  on  such  exposure  to  sale  as  aforesaid,  he,  the  said  plaint- 
iff, became  and  was  the  purchaser  of  the  said  premises,  upon  and 
according  to  the  said  conditionSj  for  the  price  of  $  ,  and  then 

paid  to  the  said  defendanl   the  sum  of  ft  ,  as  a  deposit  of 

$  per  cent,  in  part  ofthe  said  purchase  money,  and  8  , 

as  one-half  of  the  said  auction  duly,  payable  in  that  behalf;  and 


428  FORMS   OF  PETITIONS. 


the  said  plaintiff  further  saith  that,  in  consideration  of  tho  prem- 
ises, the  said  defendant  then  promised  tho  said  plaintiff  to  perform 
all  things  in  said  conditions  of  salo  contained  on  tho  vendor's  part 
to  he  performed ;  and  tho  said  plaintiff  further  saith  that,  on  the 
said         da}-  of  then  next  after,  he,  the  said  plaintiff,  was 

ready  and  willing  to  perform  all  things  in  said  conditions  con- 
tained on  his  behalf,  as  such  purchaser,  to  be  performed,  and 
to  pay  tho  residue  of  the  said  purchase  money,  and  to  complete 
tho  said  purchase,  whereof  the  said  defendant  then  had  notice,  and 
was  then  requested  by  the  said  plaintiff  to  make  to  him  a  good 
title  to  the  said  premises  ;  but  yet  the  said  defendant  did  not,  nor 
would,  when  so  requested,  or  at  any  time  since,  make  or  procure 
to  be  made  to  the  said  plaintiff  a  good  title  to  the  said  premises, 
but  hath  hitherto  wholly  neglected  and  refused  so  to  do  :  by  reason 
whereof  the  said  plaintiff  has  been  deprived  of  all  benefit  which 
would  have  resulted  to  him  from  the  completion  of  said  purchase, 
and  hath  been  put  to  the  expense  of  $  ,  in  endeavoring  to  pro- 
cure such  title  as  aforesaid,  and  from  the  use  of  the  said  money's 
so  paid  and  advanced  as  aforesaid,  to  his  damage,  as  he  saith  S 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

99.    VENDOR    V.    PURCHASER    FOR   NOT    COMPLETING    SALE   WITH    LOSS 

ON    A    RESALE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the  day  of  ,  a.  d.  18     ,  by 

one  E  F,  his  auctioneer  and  agent  in  that  behalf,  caused  to  be  put 
up  and  exposed  to  sale,  by  public  auction,  the  following  real  estate, 
that  is  to  say  :  (here  describe  it  as  briefly  as  possible,  so  that  the  de- 
scription will  identify  the  land,)  upon  and  subject  to  the  following 
conditions  of  sale,  (here  set  out  all  that  relates  to  defendant s  purchase 
and  the  cause  of  action,  as  in  the  last  form.)  And  the  said  plaintiff 
further  saith  that  the  said  defendant  was  then  the  highest  bidder 
for,  and  then  became,  and  was  in  duo  manner  declared  to  be,  tho 
purchaser  of  the  said  premises,  at  and  for  the  sum  of  8  ;  and 

thereupon  the  said  defendant,  in  part  performance  of  the  said  con- 
dition of  sale  and  of  his  said  purchase,  did  then  pay  down  the  sum 
of  $  ,  that  being  for  the  per  cent,  on  the  said  sum  of 

8  ,  as  a  deposit,  and  did  then  sign  an  agreement  in  writing  for 

the  payment  of  the  residue  of  such  purchase  money  on  or  before 
the  said         day  of  ,  a.  d.  18     ,  on  having  a  good  title  ;  and 


FORMS  OP  PETITIONS.  429 


the  said  plaintiff  avers  that,  before  and  after  the  said  day  of 
,  a.  d.  18  ,  he,  the  said  plaintiff,  was  ready  and  willing  to 
make,  and  did  offer  to  make,  to  the  said  defendant  a  good  and  suf- 
ficient title  in  fee  simple  to  the  said  premises,  and  did  then  offer 
and  tender  to  deliver  to  the  said  defendant  a  proper  conveyance 
of  the  said  premises,  conveying  from  the  said  plaintiff  to  the  said 
defendant  a  good  title  in  fee  simple  to  said  premises,  with  cove- 
nants of  general  warranty  upon  the  payment  of  the  residue  of  the 
said  purchase  money,  according  to  the  conditions  of  said  sale ;  yet 
the  said  defendant  did  not,  nor  would,  on  or  before  the  said 
day  of  ,  a.  d.  18     ,  on  having  such  good  title,  or  at  any  other 

time,  pay  to  the  said  plaintiff  the  residue  of  the  said  purchase 
money,  or  any  part  thereof,  but  then  wholly  refused  so  to  do  ;  and 
thereupon  the  said  plaintiff  afterward,  on  the  day  of  , 

a.  d.  18  ,  by  virtue  of  said  conditions  of  sale,  again  exposed  said 
premises  to  sale  by  public  auction,  and  the  same  were  then  resold 
for  the  sum  of  $  ,  whereby  there  was  a  loss  to  the  said  plaintiff 

of  8  on   such  resale,  and   the   charges   attending  the   same 

amounting  to  the  sum  of  $  ;  of  all  which  said  premises  the 

said  defendant  afterward  had  notice,  and  became  liable  to  pay  to 
the  said  plaintiff  the  said  sums  of  $  ,  and  of  §  aforesaid ; 

yet  the  said  defendant,  though  afterward,  on  the        day  of  , 

a.  d.  18  ,  requested  so  to  do,  has  not  paid  said  several  sums  of 
money,  or  any  part  thereof,  to  the  said  plaintiff,  to  his  damage 

e 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sums  of  $  ,  his  damages  so  as  aforesaid 

sustained. 

Note. — Interest  will  run  from  the  day  of  the  demand,  as  he  did 
not  become  liable  to  pay  till  such  notice  and  demand. 

X.  On  Guaranties. 

100.  FOR  PAYMENT  OF  GOODS  SOLD  TO  ANOTHER  PARTY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  on  the        day  of  ,  a.  d.  18     ,  in  consideration  that 

the  said  plaintiff,  at  the  request  of  the  said  defendant,  would  (here 
set  out  the  terms  of  the  guaranty  as  relates  to  the  consideration  for  it. 
It  may  be  given  as  follows  as  a  sample:)  sell  and  deliver  to  one  E2  F 
on  credit  all  such  goods  as  he,  the  said  ES  F,  should  have  occasion 
for,  and  require  of  the  said  plaintiff,  in  the  way  of  his  trade  and 
business  of  hemp  merchant,  he,  the  said  defendant,  promised  the 


430  FORMS   OP   PETITIONS. 


said  plaintiff  (here  set  out  the  promise  according  to  its  legal  effect,  or 
in  words:)  to  bo  accountable  to  the  said  plaintiff  for  whatever  goods 
he,  the  said  plaintiff,  should  sell  and  deliver  to  the  said  E  F,  as 
aforesaid.  And  the  said  plaintiff  avers  that  he  did  sell  and  deliver 
to  the  said  E  F  on  credit  certain  goods,  which  he,  the  said  E  F, 
had  occasion  for,  and  did  require  of  said  plaintiff,  in  the  way  of 
his  said  trade  and  business,  and  for  reasonable  prices  then  agreed 
upon  between  the  said  plaintiff  and  the  said  E  F,  amounting  in 
the  whole  to  the  sura  of  $  ,  and  that  the  credit  and  time  for 

payment  of  the  said  goods  by  the  said  E  F  to  the  said  plaintiff  has 
long  since  exjDired,  and  yet  the  said  E  F  has  not  paid  the  said 
plaintiff  the  said  sum  of  $  ,  or  any  part  thereof,  but  hath 

wholly  neglected  so  to  do  ;  of  all  which  premises  the  said  defend- 
ant, on  the  day  of  ,  a.  d.  18  ,  had  notice ;  yet  the  said 
defendant  hath  not  as  yet  paid  to  the  said  plaintiff  the  said  sum 
of  $  ,  although  he  was,  on  the  said  day  of  ,  a.  d.  18  , 
requested  by  said  plaintiff  so  to  do ;  to  the  damage  of  the  said 
plaintiff  $ 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

The  sum  demanded  of  the  defendant  should  be  enough  to  cover 
the  sum  due  from  E  F  at  time  of  demand,  and  the  interest  to  be 
calculated  thereon.  He  was  bound  to  pay  what  E  F  owed  at  the 
time  of  the  demand ;  hence  that  sum  is  his  debt. 

As  to  the  law  of  guaranties,  see  12  East,  237  ;  2  Camp.  413 ;  6 
Bing.  244;  1  B.  &  C.  10 ;  15  Ves.  Jr.  286;  Packard  v.  Eichardson, 
17  Mass.  122;  17  Wend.  179. 

Guarantor  is  entitled  to  a  notice  that  his  guaranty  has  been  ac- 
cepted. Oaks  v.  Weller,  13  Vt.  106 ;  Hawk  v.  Crittenden,  2  McLean, 
557;  2  lb.  21 ;  How  v.  Nichols,  9  Shepley,  175;  Hill  v.  Colvin,  4 
How.  (Miss.)  231. 

Where  the  guaranty  relates  to  a  bill  of  goods,  the  guarantor 
must  be  immediately  notified  of  its  acceptance.  Taylor  v.  Wet- 
more,  10  Ohio,  490.  This  notice  must  be  given  in  a  reasonable 
time.  Mussey  v.  Eaynor,  22  Pick.  223.  A  reasonable  time,  how- 
ever, must  be  as  soon  after  the  credit  as  a  party  can  conveniently 
send  the  notice.  Norton  v.  Eastman,  4  Greenl.  521;  Tuckerman 
v.  French,  7  lb.  115  ;  Babcock  v.  Bryant,  12  Pick.  133;  Beekman 
v.  Hale,  17  Johns.  134;  3  Cowen,  438;  1  Mason,  324. 

The  guaranty  must,  under  the  statute  of  frauds,  be  in  writing. 


FORMS   OF   PETITIONS.  431 


The  consideration,  however,  need  not  be  stated  in  the  writing. 
Packard  v.  Eichardson,  17  Mass.  122. 

A  guaranty  addressed  to  a  particular  firm  or  individual  does  not 
authorize  any  hut  the  person  or  persons  addressed  to  give  a  credit 
on  it.     Taylor  v.  Wetmore,  10  Ohio,  490. 

XI.  On  Promises  to  Marry. 

101.    NOT    MARRYING   ON   REQUEST. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  on  the         day  of  ,  A.  D.  18     ,  in  consideration  that  the 

said  plaintiff,  being  then  sole  and  unmarried,  at  the  request  of  the 
said  defendant,  had  then  promised  the  said  defendant  to  marry 
him,  the  said  defendant,  when  she,  the  said  plaintiff,  should  be 
thereunto  afterward  requested,  he,  the  said  defendant,  then  prom- 
ised the  said  plaintiff  to  marry  the  said  plaintiff,  when  he,  the  said 
defendant,  should  be  thereunto  afterward  requested;  and  the  said 
plaintiff  avers  that  she,  confiding  in  said  promise  of  the  said  defend- 
ant, has  always,  from  thence  hitherto,  remained  and  still  is  sole 
and  unmarried,  and  has  been  for  and  during  all  the  time  aforesaid, 
and  still  is,  read}'  and  willing  to  marry  the  said  defendant,  whereof 
the  said  defendant  has  always  had  notice;  and  the  said  plaintiff 
afterward,  to  wit,  on  the         day  of  ,  A.  D.  18     ,  requested  the 

said  defendant  to  marry  her,  the  said  plaintiff;  yet  the  said  defend- 
ant then  refused  so  to  do,  nor  would,  at  the  said  time  when  he  was 
so  requested,  or  at  anytime  before  or  since,  marry  the  said  plaintiff, 
but  hitherto  has  wholly  refused  so  to  do;  to  the  damage  of  the  said 
plaintiff,  as  she  avers,  8 

"Wherefore  the  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  said  sum  of  8  ,  her  damages  so  as  aforesaid  sus- 
tained. 

102.    FOR    MARRYING   ANOTHER. 

(State  the  pro?nise  as  in  the  last  form,  and  the  breach  as  follows .-) 
yet  the  said  defendant,  not  regarding  his  said  promise,  did,  after 
th<'  making  of  said  promise,  on  tho  day  of  ,  A.  D.  18     , 

wrongfully  many  one  ,  contrary  to  his  said  promise,  antl 

to  the  damage  of  the  said  plaintiff,  as  she  avers,  8 

Wherefore  the  said  plaintiff  prays  judgment,  etc. 

103.     ON    PROMISE   TO    MAURY    IN   A    REASONABLE    TIME. 

The  said  A  13,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  on  the  day  of  ,  a.  d.  18     ,  in  consideration  that  tho 


432  FORMS   OF   PETITIONS. 


said  plaintiff  being  then  unmarried,  at  the  request  of  the  said  de- 
fendant, had  then  promised  the  said  defendant  to  marry  him,  the 
said  defendant,  he,  the  said  defendant,  promised  the  said  plaintiff 
to  marry  her,  the  said  plaintiff,  in  a  reasonable  time  then  next  fol- 
lowing ;  and  the  said  plaintiff  avers  that,  confiding  in  said  promise 
of  the  said  defendant,  she  has  always  hitherto  remained,  and  still 
is  unmarried,  and  hath  been  during  all  of  said  time,  and  still  is, 
ready  and  willing  to  marry  the  said  defendant ;  of  all  which  the 
said  defendant  has  always  had  notice;  and  the  said  plaintiff  avers 
that  a  reasonable  time  has  elapsed  for  the  said  defendant  to  marry 
the  said  plaintiff  since  the  making  of  the  said  promise  of  the  said 
defendant ;  and  that  the  said  plaintiff,  after  the  lapse  of  such  rea- 
sonable time,  did,  on  the  day  of  ,  A.  d.  18  ,  request  the 
said  defendant  to  marry  her,  the  said  plaintiff;  yet  the  said  defend- 
ant then,  and  before,  and  ever  since  the  said  time  of  the  making 
of  said  request,  did  not,  nor  would,  within  such  reasonable  time, 
or  at  any  other  time,  marry  the  said  jDlaintiff ;  but  hitherto  hath 
wholly  refused  so  to  do,  to  the  damage  of  the  said  plaintiff,  as  she 
avers,  $ 

Wherefore  she  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  her  damages  so  as  aforesaid  sustained 

Note. — Where   the  promise   is  to  marry  on  a  fixed  day,  the 
above  forms  can  be  easily  adapted.     The  averment  of  the  promise 
.will  be  to  marry  on  such  a  day,  and  the  breach  that  he  did  not 
marry  on  that  day,  though  the  defendant  was  then  ready  and  will- 
ing, nor  at  any  other  time. 

XII.  On  Promises  to  Serve  and  Employ. 

104.  FOR  NOT  receiving  one  hired. 
The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  on  the        day  of  ,  a.   d.  18     ,   in   consideration 

that  the  said  plaintiff,  at  the  request  of  the  said  defendant,  had 
then  agreed  with  the  said  defendant  to  enter  into  his,  the  said 
defendant's   service,  as  ,  and  to   serve  the   said  defendant 

in  that  capacity  at  the  rate  of  $  per  year,  (or,  month,  or, 
week,)  to  be  paid  therefor  by  the  said  defendant  to  the  said  plaint- 
iff during  his  continuance  in  said  service,  he,  the  said  defendant, 
then  promised  the  said  plaintiff  to  receive  him  into  the  service  of 
the  said  defendant,  in  the  capacity  aforesaid,  and  to  retain  and 
employ  him  in  such  service  for  the  wages  aforesaid  and  the  said 


FORMS   OF    PETITIONS.  433 


plaintiff  avers  that,  confiding  in  the  said  promise  of  the  said  de- 
fendant, he  hath  always  been  ready  and  willing  to  enter  into  the 
service  of  the  said  defendant,  in  the  capacity  aforesaid,  for  the 
wages  aforesaid;  and  that  the  said  plaintiff  afterward,  on  the 
day  of  ,  A.  D.  18     ,  requested  the  said  defendant  to  receive 

the  said  plaintiff  into  the  service  of  the  said  defendant  in  the 
capacity  aforesaid,  and  to  retain  and  employ  him  in  such  service 
at  the  wages  aforesaid ;  yet  the  said  defendant  did  not,  nor  would^ 
at  the  time  he  was  so  requested,  or  at  any  time  afterward,  receive 
the  said  plaintiff  into  the  service  of  the  said  defendant,  or  retain  or 
employ  him  in  such  service,  at  the  wages  aforesaid,  hut  wholly 
neglected  and  refused  so  to  do ;  whereby  the  said  plaintiff  not  only 
lost  the  benefit  of  being  so  employed,  but  lost  various  chances  of 
being  employed  by  divers  other  persons,  and  remained  out  of  em- 
ployment for  the  space  of  months  then  next  ensuing,  and 
necessarily  expended  $  in  preparing  and  going  to  the  said 
defendant,  to  enter  upon  said  service,  and  was  otherwise  greatly 
injured,  to  the  damage  of  the  said  plaintiff,  as  he  avers,  $ 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  §  ,  his  damages  so  as  aforesaid 
sustained. 

105.    ON    A   BUILDING  AGREEMENT;    FOR   NOT   DOrNG   PART,  AND  DOING 
BALANCE   BADLY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  on  the        day  of  ,  a.  d.  18     ,  (date  of  agreement,)  by* 

a  certain  agreement  then  made  by  and  between  the  said  plaintiff 
and  the  said  defendant,  it  was  agreed  that  the  said  defendant, 
(here  set  out  the  agreement  in  words,  or  its  legal  effect.)  and  the  said 
plaintiff  saith  that  he  did  duly  perform,  all  and  singular,  the  con- 
ditions aforesaid  on  his  part  to  be  performed  ;  but  that  the  said  de- 
fendant, not  regarding  his  said  promise,  did  not,  nor  would  per- 
form, (here  set  out  the  work  not  done,  or  left  undone,)  and  the  said 
plaintiff  further  avers  that  the  said  defendant  performed  and  did 
the  residue  of  the  said  work  in  so  bad,  unskillful,  and  unworkman- 
like manner;  that  the  same  was  of  little  or  no  value  to  the  said 
plaintiff,  to  the  damage  of  the  said  plaintiff,  as  he  avers,  $ 

Wherefore  the  said  plaintiff  prays,  etc. 

Where  the  the  workman  finds  materials,  an  averment  of  bad 
materials  may  be  inserted,  if  such  was  the  fact.     Under  the  system 
vol.  i—28 


434  FORMS   OP    PETITIONS. 


of  making  oath  to  any  pleading,  great  care  must  be  taken  in  set- 
ting out  these  special  agreements,  and  forms  can  he  used  only  as 
guides  and  hints  as  to  the  necessary  averments  and  the  order  of 
their  arrangement. 

As  to  conditions  precedent,  their  performance  can  he  specially 
averred,  or  generally,  under  the  code.  Where  there  is  to  be  no  dis- 
pute on  the  performance  of  them,  the  general  form  is  well  enough ; 
but  where  issue  is  to  be  taken  on  the  performance  of  any  condition, 
it  will  be  best  to  aver  a  specific  performance,  and  the  defendant 
will  then  have  specifically  to  meet  it  by  a  denial;  so  that  there 
can  be,  on  the  trial,  no  uncertainty  as  to  what  is  in  issue  between 
the  parties. 

The  rule  for  declaring  on  the  special  agreement  is  plain : 

1.  The  contract  must  be  set  forth. 

2.  That  the  plaintiff  did  all  he  was  to  do  on  his  part;  that  he 
furnished  all  lumber,  if  he  was  to  do  it ;  that  he  paid  all  sums  he 
was  to  pay ;  and  any  other  act  which  must  precede  the  doing  of  the 
act  for  the  not  doing  of  which  he  sues. 

3.  That  the  defendant  either  did  not  do  the  work  or  act  he  was 
to  do,  or  that,  doing  it,  he  did  it  badly  and  in  an  improper  manner. 

4.  The  statement  of  the  damages  sustained.  If  special  damages 
have  been  sustained,  these  must  he  specially  set  out  in  the  petition, 
or  they  can  not  be  recovered.  Numerous  forms  may  be  found  in 
2  Chitty  on  PL  324  and  seq. 

XIII.  Against  Agents,  etc. 

106.    FOR   SELLING   GOODS    CONTRARY    TO    ORDER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  on  the         day  of  ,  a.  d.  18     ,  in  consideration  that  the 

said  plaintiff,  at  the  request  of  the  said  defendant,  had  retained 
and  employed  the  said  defendant  to  sell  and  dispose  of,  for  cash  or 
approved  bill,  at  a  short  date,  certain  goods  and  merchandise,  to 
wit :  (here  state  the  goods,)  of  the  said  plaintiff,  of  the  value  of  $  , 
for  commission  and  reward  to  the  said  defendant  in  that  behalf; 
he,  the  said  defendant,  then  promised  the  said  plaintiff  to  endeavor 
to  sell  and  dispose  of  the  said  goods  and  chattels  on  the  terms  and 
conditions  aforesaid  ;  yet  the  said  defendant,  on  the       day  of  , 

a.  d.  18  ,  did  sell  and  dispose  of  the  said  goods  and  merchandise 
of  the  said  plaintiff  for  the  sum  of  $  ,  otherwise  than  for  cash 
or  an  approved  bill  at  a  short  date,  but  did  sell  and  dispose  of  the 
same  for  a  bad  and  insufficient  bill  of  exchange,  which  hath  be- 


FORMS   OF   PETITIONS.  435 


come  and  is  of  no  value  to  the  said  plaintiff,  so  that  the  plaintiff 
hath  lost  the  whole  of  the  said  sum  of  8  ,  for  which  said  goods 
and  merchandise  were  so  as  aforesaid  sold  and  disj^osed  of  by  the 
said  defendant,  to  the  damage  of  the  said  plaintiff,  as  be  avers, 
8 

"Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  8         .  bis  damages  so  as  aforesaid  sustained. 

Note. — The  damages  in  such  a  case  are  the  amount  of  the  had 
bill,  with  interest  thereon,  and  should  be  stated  high  enough  to 
meet  the  sum  due  at  the  trial. 

107.    FOR  SELLING  ON  CREDIT,  WHEN  ORDERS  WERE  TO  SELL  FOR  CASH. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  on  the         day  of  ,  A.  D.  18     ,  delivered 

to  the  said  defendant  the  following  goods  and  chattels :  (here  de- . 
scribe  goods  and  chattels,)  as  his  agent  and  factor,  to  sell  and  dis- 
pose of  the  same  for  cash,  and  not  otherwise,  and  the  said  defend- 
ant then  received  said  goods  and  chattels,  and  promised  the  said 
plaintiff  to  sell  and  dispose  of  the  same  on  the  terms  aforesaid  ;  yet 
the  said  defendant  afterward,  to  wit,  on  the         day  of  ,  a.  d. 

18  ,  did  sell  and  dispose  of  said  goods  and  chattels  upon  credit, 
and  otherwise  than  for  cash,  to  one  E  F,  for  the  sum  of  8  , 
which  said  sum  remains  and  is  still  unpaid  to  the  said  plaintiff, 
and  the  said  E  F  has  become  and  is  wholly  insolvent,  and  the  said 
plaintiff  is  likely  to  lose  the  same,  to  the  damage  of  the  said 
plaintiff,  as  he  avers,  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  8  ,  bis  damages  so  as  aforesaid 
sustained. 

XIV.  Against  Wharfingers. 

108.     FOR   LOSING   GOODS   DELIVERED   TO   BE    SHIPPED    ON   A    PARTICU- 
LAR  VESSEL,    ETC. 
The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant. 
for  that  before  and.  at  the  time  of  making  the  promise  hereinafter 
I.  the  said  defendanl  was  a  wharfinger,  and  pursued  the  buei 
of  such  wharfinger  at  ,  in  the  county  of  ,  and  that 

thereupon,  on  the         day  of  ,  a.  d.  18      ,  in  consideration 

that  the  said  plaintiff,  at  the  request  of  the  said  defendant,  deliv- 
ered to  the  said  defendant,  at  and  upon  the  said  wharf,  the  follow- 


436  FORMS   OP    PETITIONS. 


ing  goods  and  chattels,  that  is  to  say:  (here  describe  goods  and 
chattels,)  of  the  said  plaintiff,  of  the  value  of  $  ,  to  be  by  the 
said  defendant  safely  kept  at  and  upon  said  wharf,  and  from  thence 
to  be  shipped  in  and  on  board  of  a  certain  ship  or  vessel,  (if  the 
vessel  be  named,  say,  a  certain  ship  called  ,)  for  the  purpose 

of  being  carried  therein  to  ,  for  reasonable  wharfage  and  re- 

ward to  the  said  defendant  in  that  behalf;  he,  the  said  defendant, 
then  promised  the  said  plaintiff  that  he,  the  said  defendant,  would 
safely  keep  the  said  goods  and  chattels  at  and  upon  said  wharf,  and 
would  ship  the  same  in  and  on  board  of  the  said  ship  or  vessel,  in 
manner  and  for  the  purpose  aforesaid  ;  and  the  said  defendant  then 
received  said  goods  and  chattels  for  the  purpose  aforesaid,  and 
might  have  shipped  the  same  in  and  on  board  of  said  ship  or  vessel, 
in  manner  and  for  the  purpose  aforesaid ;  yet  the  said  defendant 
did  not,  nor  would,  safely  keep  the  said  goods  and  chattels  at  and 
upon  said  wharf,  nor  ship  the  same  in  and  on  board  of  the  said 
ship  or  vessel,  in  manner  and  for  the  purpose  aforesaid ;  but,  on  the 
contrary  thereof,  he,  the  said  defendant,  so  carelessly  conducted 
himself  in  this  behalf  that,  by  and  through  the  mere  carelessness 
and  negligence  of  the  said  defendant  and  his  servants  in  that  be- 
half, the  said  goods  and  chattels,  of  the  value  of  $  aforesaid, 
became  and  were  wholly  lost  to  the  said  plaintiff,  to  the  damage 
of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant, for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

XV.  On  By-Laws  and  Statutes. 

109.    FOR   KEEPING   GUNPOWDER    IN   A   CITY   OR    TOWN    CONTRARY   TO 

A   BY-LAW. 

The  said  town  of  ,  plaintiff,  complains  of  the  said  C  D,  de- 

fendant, for  that,  heretofore,  on  the        day  of  ,  a.  d.  18     ,  a 

certain  by-law  before  that  time  duly  passed  by  the  city  council  of 
said  town,  and  published  within  the  said  town  of  ,  according 

to  law,  was  in  full  force  within  said  town  of  ,  as  a  by-law 

thereof;  that  by  the  said  by-law  it  was  provided  that  no  person 
should  keep  within  the  corporate  limits  of  said  town  any  quantity 
of  gunpowder  exceeding  one  keg,  unless  a  license  for  that  purpose 
was  first  had  and  obtained  from  the  city  council ;  and  it  was  further 
provided  that  any  person  who  should  violate  the  provisions  of  said 
by-law  should  pay  a  penalty  not  exceeding  one  hundred  dollars ; 


FORMS   OF   PETITIONS.  437 


and  the  said  plaintiff  further  avers  that  the  said  defendant  did,  on 
the  said        day  of  ,  a.  d.  18     ,  and  for  a  long  space  of  time 

.before  and  after  that  date,  keep  in  his  warehouse,  situate  within 
the  corporate  limits  of  said  town  of  ,  ten  kegs  of  gunpowder 

without  first  having  obtained  a  license  therefor  from  the  city  coun- 
cil of  said  town  of  ,  contrary  to  the  provisions  of  said  by- 
law, and  whereby  the  said  defendant  has  become  liable  to  pay  to 
the  said  plaintiff  the  said  sum  of  one  hundred  dollars  ;  yet  the  said 
defendant,  though  often  requested  so  to  do,  has  not  paid  said  sum 
of  money,  or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendant for  said  sum  of  $ 

110.    FOR   KEEPING   A   GAMING   HOUSE. 

The  said  ,  plaintiff,  complains  of  the  said  C  D,  defendant, 

for  that,  on  the         day  of  ,  a.  d.  18     ,  there  was  in  force  in 

the  said  town  of  ,  a  certain  by-law  of  said  town  duly  passed 

and  published  by  the  city  council  of  said  town,  whereby  it  was 
provided  that  if  any  person  should  rent  any  bouse,  store,  or  room, 
to  any  person  whatever,  to  be  kept  and  used  for  the  purposes  of 
gaming,  then  such  person  should  forfeit  and  pay  a  penalty  not  ex- 
ceeding one  hundred  dollars ;  and  the  said  plaintiff  avers  that  the 
said  defendant  did,  on  the  said        day  of  ,  a.  d.  18     ,  rent  to 

one  E  F,  the  under  or  cellar  rooms  of  his  storehouse,  situate  in 
said  town,  on  the  west  side  of  street,  between  street 

and  street,  to  be  kept  and  used  by  the  said  E  P  for  the  pur- 

pose of  permitting  and  carrying  on  therein  gaming,  contrary  to 
the  provisions  of  the  by-laws  aforesaid,  whereby  the  said  defend- 
ant has  become  liable  to  pay  the  said  penalty  of  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $ 

These  forms  will  serve  as  a  sufficient  guide  in  all  similar  cases ; 
the  averments  must  bo  the  existence  and  terms  of  the  by-law,  and 
then,  such  averments  as  show  a  violation  by  the  defendant,  con- 
cludingwith  a  prayer  of  judgment  for  the  entire  penalty.  The 
same  role  of  declaring  will  apply  to  all  cases  where  by  statute  a 
party  i-  liable  for  any  such  penalty  by  reason  of  any  neglect.  The 
law  Deed  not  1m-  set  out,  bul  the  petition  must  contain  such  facts  as 
show  that  the  defendant  comes  within  the  provisions  of  the  law, 
and  has  incurred  its  penalty. 


438  FORMS   OF    PETITIONS. 


111.    BY   A   SUPERVISOR   AGAINST   ONE    FOR   NEGLECTING   TO   WORK. 

The  said  A  B,  supervisor  of  road  district  numbered  ,  in  the 
township  of  ,  in  the  county  of  ,  plaintiff,  complains  of 

C  D,  defendant,  for  that  the  said  plaintiff,  on  the        day  of  , 

A.  d.  18  ,  was  supervisor  of  said  road  district  numbered  ,  in 
said  township  of  ,  in  said  county  of  ,  and  that  the  said 

defendant  was  then  a  male  person  between  the  ages  of  twenty -one 
and  fifty-five,  and  had  resided  over  three  months  in  this  State,  and 
was  not  a  township  charge,  and  did,  on  the  said  day  of  , 

A.  d.  18  ,  reside  in  said  road  district  numbered  ,  in  said  town- 
ship of  ,  in  said  county  of  ,  and  that  the  said  plaintiff 
did,  on  the  said  day  of  ,  a.  d.  18  ,  notify  the  said  de- 
fendant to  be  and  appear,  with  proper  implements,  on  the  day 
of  next  thereafter,  at  the  dwelling  house  of  ,  in  said 
district,  to  work  on  the  public  highways  in  said  district;  yet  the 
said  defendant  neglected  and  did  not,  nor  would  attend  at  the 
dwelling-house  of  the  said  ,  in  said  road  district,  to  work  on 
said  public  highway,  but  wholly  neglected  so  to  do,  whereby  he 
has  incurred  the  penalty  of  $  ;  yet  the  said  defendant,  though 
often  requested,  has  not  paid  said  sum,  or  any  part  thereof. 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $ 

XVI.  On  Judgments. 

112.    ON   A   DOMESTIC   JUDGMENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  at  the  term  of  the  Court  of  Com- 

mon Pleas,  within  and  for  the  county  of  ,  did,  by  the  con- 

sideration and  judgment  of  said  court,  recover  against  the  said 
C  D,  defendant,  a  judgment  for  the  sum  of  $  ,  his  debt,  and 

$  ,  his  costs  in  and  about  his  suit  in  that  behalf  expended; 

which  judgment  still  remains  in  that  court  in  full  force,  unreversed 
and  unsatisfied ;  yet  the  said  defendant  has  not  paid  the  said  sum, 
or  any  part  thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sums,  amounting  to  $  ,  with  interest 

thereon  from  the        day  of  ,  a.  d.  18     . 

113.    ON    JUDGMENT    FN    ANOTHER   STATE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  did,  on  the         day  of  ,  a.  d.  18     ,  by 


FORMS   OF    PETITIONS.  439 


the  consideration   and  judgment  of  a  Supreme  Judicial  Court  of 
the  State  of  Massachusetts,  begun  and  held  at  the  court-house  in 
Northampton,  within  and  for  the  county  of  Hampshire,  on  the  said 
day  of  ,  a.  d.  18     ,  to  recover  against  the  said  C  D  the 

sum  of  8  ,  his  debt,  and  $  ,  his  costs  in  and  about  his  suit 

in  that  behalf  expended ;  which  said  judgment  still  remains  in 
that  court  in  full  force  and  effect,  in  no  wise  reversed  or  annulled  ; 
yet  the  said  defendant,  though  often  requested,  has  not  paid  said 
several  sums  of  money,  or  either  of  them,  or  any  part  thereof,  to 
the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sums  of  money,  amounting  to  the  sum  of  $  , 
together  with  interest  thereon  from  the        day  of  A.  D.  18     . 

XVII.  On  Instruments  under  Seal. 

The  code  does  not  assume  to  change  the  legal  character  of  con- 
tracts. They  are  still  divided  into  contracts  by  parol  or  by  deed ; 
and  deeds  have  the  same  legal  effect  as  formerly.  But  in  declaring 
on  them,  there  is  no  necessity  of  further  discriminating  between 
them  than  to  show  the  character  of  the  contract.  It  is  not  to  be 
supposed  that  a  petition  should  not  state  whether  the  contract  is  or 
is  not  under  seal ;  or,  if  no  averment  is  made,  then  it  must  be  held 
a  parol  contract,  and  can  not  be  proved  by  one  under  seal.  It  is 
supposed  that  there  is  no  necessity  of  making  profert  of  a  deed, 
as  the  party  must  now  set  forth  in  his  petition  all  of  the  deed  which 
can  in  any  event  be  required  to  go  on  the  record.  He  must  set  out 
not  only  his  bond,  but  the  condition,  and  then  show  such  facts  as 
entitle  him  to  recover  under  that  condition.  In  declaring,  there- 
fore, on  bonds  with  a  condition,  it  is  necessary  to  set  out  the  con- 
dition in  the  petition,  and  all  the  facts  which  are  necessary  to  be 
shown,  in  order  to  entitle  the  plaintiff  to  a  recovery.  The  prac- 
tice, therefore,  of  declaring  on  the  penal  part  of  a  bond  no  longer 
exists. 

The  forms  which  follow  will  merely  serve  as  examples  of  the 
manner  of  declaring  on  deeds  and  contracts  under  seal. 

114.   ON   MONEY   BOND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  H,  defendant, 
for  that,  the  said  defendant,  on  the        day  of  ,  a.  d.  18     , 

made  his  certain  writing  obligatory  of  thai  date,  and  then  and 
there  delivered  the  same  to  the  Baid  plaintiff,  and  thereby  bound 
himself  to  pay  to  the  said  plaintiff  the  sum  of  $        ,  in  days 


440  FORMS   OF   PETITIONS. 


after  date,  which  period  has  elapsed  ;  yet  the  said  defendant  has 
not  paid  said  sum  of  money,  or  any  part  thereof,  to  the  said 
plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the        day  of  ,  a.  d.  18     . 

These  bonds  being  negotiable,  the  petition  will,  in  all  other 
respects,  correspond  with  those  on  promissory  note.  The  only 
change  is  in  the  description  of  the  instrument,  which  must  be 
called  a  writing  obligatory,  or  a  promissory  note  under  seal,  or  be 
described  by  some  other  word  or  words  that  will  show  the  charac- 
ter of  the  contract. 

On  Bonds  with  Condition. 
115.  administrator's  bond. 

The  said  A  B,  one  of  the  heirs  at  law  and  legal  distributees  of 
E  F,  deceased,  plaintiff,  complains  of  C  D,  L  M,  and  N  O,  defend- 
ants, for  that  the  said  defendants,  on  the  day  of  ,  a.  d. 
18  ,  at  the  county  of  aforesaid,  by  their  certain  writing 
obligatory  of  that  date,  acknowledged  themselves  to  be  held  and 
firmly  bound  unto  the  said  State  of  Ohio  in  the  sum  of  $  ; 
which  said  writing  obligatory  was  subject  to  a  certain  condition 
thereunder  written,  whereby  it  was  provided  that  whereas,  (Jiere 
copy  the  whole  condition  in  words.) 

And  the  said  plaintiff  saith  that  afterward  the  said  ,  ad- 

ministrator, entered  upon  the  trusts  of  said  administration,  and  a 
large  amount  of  assets  came  to  his  hands  to  be  administered,  and 
that  afterward,  to  wit,  on  the  day  of  ,  a.  d.  18     ,  the 

said  C  D  settled  in  the  Probate  Court  of  said  county  his  accounts 
of  administration,  and  there  was  then  found,  by  the  considera- 
tion of  said  court,  the  sum  of  $  ,  in  the  hands  of  the  said  C  D, 
which  the  said  C  D  was  adjudged  to  pay  over,  according  to  law; 
and  the  said  plaintiff  further  saith  that  he,  the  said  A  B,  is  one  of  the 
heirs  of  the  said  intestate,  and  as  such  entitled  to  receive  from  the 
said  administrator  the  one-sixth  part  of  the  said  sum  of  $  ,  so 
found  in  his  hands  for  distribution,  to  wit,  the  sum  of  $  ,  and 
that  afterward,  to  wit,  on  the  day  of  ,  A.  D.  18     ,  the  said 

A  B  demanded  of  the  said  C  D,  the  said  sum  of  $  ,  and  re- 
quested him  to  pay  to  the  said  plaintiff  the  said  sum ;  yet  the  said 
C  D  did  not,  nor  would,  pay  the  said  sum  of  I  ,  but  hitherto 
hath  wholly  neglected  so  to  do  ;  whereby  an  action  hath  accrued 
to  the  said  plaintiff  on  the  said  writing  obligatory. 


FORMS   OF   PETITIONS.  441 


Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
C  D,  L  M,  and  N  O,  for  the  said  sum  of  §  ,  (amount  claimed,) 
with  interest  thereon  from  the  said        day  of  ,  a.  d.  18     . 

Note. — Interest  runs  only  from  the  date  of  the  demand.  The 
administrator  is  not  in  fault  till  demand  is  made.  If  the  default 
consists  in  wasting  the  estate,  or  in  not  settling  it,  the  breach  must 
be  assigned  accordingly.  These  breaches  may  be  assigned  after  set- 
ting forth  the  condition,  the  above  form  being  followed  to  that 
point. 

116.    BREACH   THAT    HE    HAS   WASTED    THE    ESTATE. 

And  the  said  plaintiff  saith  that  a  large  amount  of  assets  came 
to  the  hands  of  the  said  administrator  to  be  administered ;  and 
among  others,  the  following  assets  came  to  the  hands  of  the  said  G 
D,  to  wit,  (here  describe  them,)  which  assets  the  said  C  D  afterward 
wasted  and  converted  to  his  own  use,  and  refused  and  neglected  to 
return  and  account  for  in  the  schedule  and  accounts  which  he,  the 
said  C  D,  returned  to  the  said  Probate  Court,  and  that,  in  his  final 
settlement,  the  said  C  D  was  not  charged  with,  nor  did  he  account 
for  the  said  goods  and  effects  of  the  value  of  $ 

By  section  566  of  the  code,  Swan's  Stat.  696,  the  manner  of  suing 
on  official  bonds  is  wholly  changed.     The  action  must  now  be  in 
the  name  of  the  party  in  interest,  and  not  in  the  name  of  the  State 
the  obligee  of  the  bond.     And  any  number  of  suits  can  be  brought 
on  the  official  bond  until  the  judgments  amount  to  the  penalty. 

117.  on  sheriff's  bond. 
The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  and  G- 
H,  defendants,  for  that  the  said  defendants,  on  the        day  of  , 

a.  d.  18     ,  at  the  county  of  ,  by  their  certain  writing  obliga- 

tory of  that  date,  acknowledge  themselves  to  be  held  and  firmly 
bound  unto  the  State  of  Ohio  in  the  sum  of  $  ,  and  which  said 
writing  obligatory  was  and  is  subject  to  a  condition  thereunder 
written,  and  which  condition  is  in  the  words  following,  that  is  to 
say  :  (here  set  out  the  condition  in  its  precise  words  and  figures;)  and 
the  plaintiff  farther  saith  that  the  C  D  did  thereupon  take  upon 
himself  the  duties  of  the  said  office  of  sheriff  of  said  county  of 
,  and  assumed,  and  <li<l  ae1  as  such,  at  the  time  of  the  com- 
mitting of  the  wrongs  hereinafter  stated ;  and  the  plaintiff  farther 
saith  that  the  said  A  B  did,  at  the  term  of  the  Court  of  Com- 


442  FORMS    OP    TETITTONS. 


mon  Pleas,  within  and  for  the  said  county  of  ,  by  the  consid- 

eration of  said  court,  recover  a  judgment  against  one  L  M  for  the 
sum  of  $  ,  his  debt,  and  $  ,  his  costs  in  said  action  expended ; 
that  the  said  A  B  afterward,  on  the        day  of  ,  a.  d.  18     , 

(date  of  execution,)  caused  an  execution  to  be  issued  from  said  court 
on  said  judgment  against  the  said  L  M,  and  directed  to  the  sheriff 
of  the  said  county  of  "  ,  commanding  him  that  of  the  goods 
and  chattels  of  the  said  L  M,  he  cause  to  be  made  the  said  sum 
of  %  ,  debt,  and  %  ,  costs,  and  $  ,  accruing  costs,  and,  for 
want  of  goods  and  chattels,  he  cause  the  same  to  be  made  of  the 
lands  and  tenements  of  the  said  L  M,  and  that  he  return  said  exe- 
cution on  the  day  of  ,  a.  d.  18  ;  (this  ichole  averment 
must  of  course  correspond  with  the  language  of  the  execution ;  the 
above  is  the  mere  substance  of  the  writ  as  stated  in  the  statute;)  and 
that  the  said  execution  did  then  come  to  the  hands  of  the  said 
C  D,  as  such  sheriff  of  the  said  county  of  ,  to  be  executed 
according  to  law ;  that  afterward,  to  wit,  on  the  day  of  , 
A.  d.  18  ,  the  said  C  D  returned  said  writ  of  execution,  with  the 
following  return  indorsed  thereon :  (here  set  out  the  return  in  its 
words,)  "  Eeceived  this  writ  this  day  of  a.  d.  18  .  I 
have  made  the  money  named  in  said  writ,  July  21,  18  ,"  (date  of 
return;)  and  the  said#plaintiff  further  saith  that  afterward,  on  the 
day  of  ,  a.  d.  18  ,  he,  the  said  A  B,  requested  the  said 
C  B  to  pay  him  the  said  sum  of  money  so  made  on  said  writ  of 
execution  ;  but  the  said  C  D  then  neglected  and  refused  to  pay  the 
same  to  the  said  A  B ;  and  the  said  plaintiff  avers  that  neither  the 
said  C  D,  nor  either  of  the  other  defendants  have  paid  said  sum  of 
money,  or  any  part  thereof,  to  the  said  A  B. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendants  for  the  said  sum  of  $  ,  (the  amount  claimed,)  together 
with  interest  thereon  from  the  said        day  of  ,  a.  d.  18     . 

Interest  in  such  a  case  will  run  from  the  time  the  demand  is 
made.  This  form  can  be  easily  adapted  to  meet  any  kind  of  neg- 
lect, especially  by  consulting  the  forms  of  petition  against  sher- 
iffs for  neglect.  The  assignment  of  the  breach  must  be  substan- 
tially what  a  petition  against  the  officer  alone  must  be.  And  the 
same  is  true  in  regard  to  actions  on  all  official  bonds.  Suit  can 
first  be  instituted  against  the  officer  alone  ;  and  a  recovery  being 
had  against  him,  an  action  can  then  be  instituted  on  the  bond,  and 
the  breach  be  assigned  by  setting- forth  the  action  and  judgment 
against  the  officer  and  its  non-payment:  or  an  action  may  in  the 


FORMS   OF   PETITIONS.  443 


first  instance  be  brought  on  tbe  bond,  and  then  the  default  of  the 
officer  must  be  set  out  as  a  breach  of  the  bond  just  as  it  must  have 
been  in  an  action  directly  against  him  alone. 

118.    LESSOR   V.    LESSEE   FOR  NOT  PAYING  FOR  CERTAIN   REPAIRS  MADE 

BY    LESSOR. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  on  the         day  of  ,  a.  d.  18     ,  (date  of  lease,)  by  a 

certain  indenture  then  made  between  the  plaintiff  of  the  one  part 
and  the  defendant  of  the  other,  sealed  with  the  seal  of  said  de- 
fendant, the  said  plaintiff,  for  the  consideration  therein  mentioned, 
did  demise,  lease,  and  to  farm  let  for  the  term  of  years,  from 

and  after  the  date  of  said  indenture,  unto  the  said  defendant  and 
his  assigns,  a  certain  dwelling-house  and  premises,  with  the  appur- 
tenances, as  described  in  said  indenture ;  and  the  said  plaintiff  fur- 
ther saith  that  the  said  defendant,  by  said  indenture,  among  other 
things,  covenanted  that  he,  the  said  defendant,  would  pay  the  said 
plaintiff  for  all  necessary  repairs  put  upon  the  premises  for  the 
term  aforesaid  ;  and  the  said  plaintiff  further  saith  that  the  said 
defendant  did  not,  nor  would,  after  the  said  agreement  and  during 
the  said  demise,  and  while  he  was  possessed  of  the  said  premises, 
with  the  appurtenances  as  aforesaid,  pay  or  oause  to  be  paid  to  the 
said  plaintiff  the  repairs  that  became  and  were  necessary  to  the 
said  premises,  and  that  were  made  upon  the  premises  by  the  said 
plaintiff,  after  the  making  of  the  said  indenture,  and  the  said 
plaintiff  avers  that  he  expended  $  in  said  repairs,  of  all  which 
the  said  defendant  had  notice ;  yet  the  said  defendant  has  not  paid 
the  same,  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  he  asks  judgment  for  the  said  sum  of  $  ,  his  dam- 
ages so  as  aforesaid  sustained. 

This  breach  is  assigned  as  in  the  case  of  McGeehan  v.  McLaugh- 
lin, 1  Hall,  33.  The  court  says :  "  Under  the  general  rule  the 
breach  would  be  sufficiently  assigned  by  negativing  the  words  of 
the  covenant,  and  the  exception  is  of  cases  where  such  general  as- 
signment  docs  not  necessarily  amount  to  an  averment  of  a  breach 
of  the  covenants,  but  farther  averments  are  necessary  to  show 
that  tlie  covenant  has  been  broken;  and  in  these  cases  the  breach 
must  l>e  specially  assigned.  Now  the  covenanf  was  to  pay  for  all 
Bary  repairs  pnf  upon  the  premises  by  the  plaintiff;  the 
breach  assigned  is  thai  the  defendant  has  not  paid  him  for  the  re- 
pairs that  became  ami  were  necessary,  and  were  put  upon  tho 


444  FORMS   OF   PETITIONS. 


premises  by  him.  To  sustain  this  general  assignment,  it  will  be 
incumbent  on  the  plaintiff  to  show  that  repairs  were  necessary, 
and  were  put  upon  the  premises  by  him ;  and  to  give  a  jury  a 
measure  of  his  damages,  he  must  also  show  the  amount  of  his  ex- 
penditure in  making  them.  But  these  are  matters  of  evidence,  to 
be  shown  at  the  trial  in  support  of  the  action.  They  are  not  neces- 
sary to  be  superadded  to  the  general  assignment  in  pleading ;  and 
so  far  as  any  averment  of  them  is  requisite,  it  is  in  substance  made 
in  the  general  assignment  itself,  for  the  averment  that  the  defend- 
ant did  not  and  would  not  pay  for  the  repairs  that  were  necessary, 
and  were  made  upon  the  premises  by  the  plaintiff,  is  in  substance 
an  averment  of  the  fact  that  repairs  were  necessary  and  were 
made.  And  if  these  facts  are  necessarily  included  in  that  general 
averment,  a  distinct  and  substantive  averment  of  them  could  not 
be  necessary."  The  same  doctrine  is  recognized  through  all  the 
cases.  Eandall  v.  C.  &  D.  Canal  Co.,  1  Harr.  151 ;  3  Bibb,  330  ; 
Hard  v.  Trimble,  3  Marsh.  533;  14  Johns.  248;  11  lb.  6. 

Breach  of  a  covenant  of  seizin  may  be  assigned  by  negativing 
the  words  of  the  covenant,  that  the  grantor  has  good  right  to  con- 
vey ;  but  the  covenants  for  quiet  enjoyment  and  of  general  war- 
ranty require  the  breach  to  show  an  eviction.  Bechert  v.  Snyder, 
9  Wend.  416  ;  Marston  v.  Hobbs,  2  Mass.  433  ;  4  lb.  408 ;  Pollard 
v.  Dwight,  4  Cranch.  421. 

In  Ohio,  however,  the  court  has  held  that  no  action  can  be  main- 
tained on  a  covenant  of  seizin,  where  the  grantor  was  seized  in 
fact,  until  an  eviction,  and  hence  the  breach  must  set  forth  that 
fact.  Bobinson  v.  Neil,  3  Ohio,  525  ;  King  v.  Kerr's  Adm'r,  5 
lb.  154. 

No  more  of  the  covenants  need  be  stated  than  the  one  on  which 
the  action  is  brought.     1  Saund.  233,  note  2 ;  2  lb.  366,  note  1. 

119.    ON    COVENANT   TO   PAY   RENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  on  the         day  of  ,  a.  d.  18     ,  by  a  certain  indenture 

of  that  date,  then  made  between  the  said  plaintiff  of  the  one  part, 
and  the  said  defendant  of  the  other  part,  sealed  with  the  seal  of 
the  said  defendant,  the  said  plaintiff  did  demise,  lease,  and  to  farm 
let  unto  the  said  defendant  and  his  assigns  a  certain  dwelling- 
house  (or  other  building,  or  real  estate,  as  the  fact  is\)  and  prem- 
ises, with  the  appurtenances  particularly  described  in  said  inden- 
ture, situate  in  ,  for  the  term  of  years  next  thereafter 
ensuing  the  date  of  said  indenture,  he,  the  said  defendant,  paying 


FORMS   OP   PETITIONS.  445 


therefor,  to  the  said  plaintiff  and  his  assigns,  the  yearly  rent  of 
$        ,  payable  quarterly  (or,  semi-annually,)  on  the  day  of 

,  in  each  and  every  year ;  and  the  said  defendant  did 
thereby  covenant  with  the  said  plaintiff  and  his  assigns  to  pay  the 
said  sum  of  $  yearly,  and  at  the  times" before  stated.  By  vir- 
tue of  which  demise  the  said  defendant  then  entered  into  posses- 
sion of  the  said  dwelling-house  tind  premises,  and  was  possessed 
thereof  for  the  term  aforesaid  ;  yet  the  said  plaintiff  saith  that, 
after  the  making  of  said  indenture  of  lease,  and  during  the  said 
term  thereby  granted,  a  large  sum  of  money,  to  wit,  the  sum  of 
$         ,  of  the  rent  aforesaid  for  of  said  term,  ending  on  the 

day  of  ,  a.  d.  18     ,  became  and  was  due,  and  still  is  in 

arrears  and  unpaid  to  the  said  plaintiff;  yet  the  said  defendant, 
though  often  requested,  hath  not  paid  the  same  to  the  plaintiff. 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $         ,  with  interest  thereon,  from  the 

day  of  ,  a.  d.  18     . 

120.  ASSIGNMENT   OP   A   TERM. 

By  virtue  of  which  said  demise,  the  said  E  F  (lessee)  afterward 
entered  into  and  upon  the  said  demised  premises,  and  became  and 
was  thereof  possessed  for  the  term  aforesaid.  And  the  said  E  F, 
being  so  possessed,  afterward,  to  wit,  on  the        day  of  ,  a.  d. 

18  ,  by  his  deed  of  assignment,  duly  executed,  for  the  considera- 
tion therein  mentioned,  did  sell  and  assign  unto  the  said  plaintiff 
and  his  assigns  all  his  right,  title,  and  interest  in  and  to  the  residue 
of  the  said  term  yet  unexpired,  named  in  said  deed  of  demise;  by 
virtue  of  which  the  said  plaintiff  then  entered  into  the  said  de- 
mised premises,  and  was  thereof  possessed,  and  still  is  possessed 
for  the  residue  of  the  said  term  yet  unexpired. 

121.  SURRENDER    OP   A   TERM. 

And  the  said  E  F,  (lessee,)  being  so  possessed  of  the  said  tenements 
as  aforesaid,  he,  the  said  E  F,  after  the  making  of  the  said  lease, 
and  during  the  continuance  of  said  term,  thereby  granted,  on  the 

day  of  ,  A.  d.  18     ,  did  surrender  to  the  said 

the  said  term  of  years  of  him,  the  said  B  P,  then  to  come  and  un- 
expired, of  and  in  the  said  demised  tenements,  with  the  appurte- 
nances, and  all  his  estate,  right,  title,  and  interest,  of  and  in  the 
same;  which  said  surrender  he,  the  said  ,  then  accepted. 


446  FORMS   OF    PETITIONS. 


122.    COVENANT   TO   PAY   EXTRA   INSURANCE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  being,  on  the         day  of  ,  a.  d.  18     , 

possessed  of  certain  real  estate  and  buildings  thereon,  situate  in 
,  in  said  county  of  ,  did  demise  and  lease  the  said 

premises  to  the  said  defendant  for  the  term  of  years   next 

thereafter  ensuing,  at  a  aertain  rent  or  price  then  agreed  upon; 
and  that  the  said  defendant,  in  consideration  thereof,  then  agreed 
with  the  said  plaintiff  to  pay  him  any  amount  of  extra  insurance 
on  the  building  on  said  premises  caused  from  the  said  defendant's 
using  the  said  premises  for  purposes  different  from  that  for  which 
they  were  being  used  at  the  time  of  the  making  of  said  lease. 
And  the  said  plaintiff  saith  that  the  said  defendant,  upon  taking 
possession  of  the  said  premises  under  the  said  lease,  converted  a 
part  of  a  building,  before  that  time  and  at  the  execution  and  de- 
livery of  said  lease  used  as  a  dwelling  and  private  boarding-house, 
into  a  refreshment  saloon  and  billiard-room,  and  rented  the  build- 
ing before  that  time  occupied  as  a  private  barn  and  stable  into  a 
public  livery  stable ;  whereby  the  rate  of  insurance  on  the  said 
building  standing  on  said  leased  premises  was  greatly  enhanced ; 
of  which  the  said  defendant  then  had  notice;  and  the  said  plaintiff 
saith  that  he  has  been  compelled  to  pay,  and  has  paid,  by  reason 
of  said  changes  in  the  use  of  the  said  premises,  a  large  amount  of 
extra  insurance,  to  wit,  the  sum  of  $  ;  and  the  plaintiff  further 
saith  that  he  notified  the  said  defendant  of  the  said  extra  rate  of 
insurance,  and,  on  the         day  of  ,  a.  d.  18     ,  requested  him, 

the  said  defendant,  to  pay  him,  the  said  plaintiff,  the  said  sum  of 
$  ,  so  paid  as  extra  insurance  upon  said  premises  ;  yet  the  said 
defendant  did  not,  nor  would  he,  pay  to  the  said  plaintiff  the  said 
sum  of  $  ;  but  so  to  do  has  wholly  refused,  to  the  damage  of 
the  said  plaintiff  $ 

The  said  plaintiff  therefore  prays  judgment  against  said  defend- 
ant for  the  said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

AB, 

By  ,  his  Attorney. 

Note. — This  form  will  be  found  substantially  copied  from  the 
case  of  Edward  v.  Lent  et  al.,  8  Pr.  28 


FORMS   OF   PETITIONS.  447 


123.    ON   DEED    WITH    COVENANTS   OF   GENERAL   WARRANTY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  a.  d.  18     ,  by 

his  deed  of  that  date  duly  executed,  in  consideration  of  $«  ,  by 
the  said  plaintiff  then  in  hand  paid  to  the  said  defendant,  granted 
and  conveyed  to  the  said  plaintiff  and  his  heirs  the  following  real 
estate,  situate  in  the  county  of  ,  and  described  as  follows : 

(here  set  out  a  description  of  the  land  conveyed,}  to  have  and  to  hold 
the  aforegranted  premises  to  the  said  plaintiff,  his  heirs  and  assigns, 
forever  ;  and  the  said  defendant  by  said  deed  covenanted  to  and 
with  the  said  plaintiff  that  he,  the  said  defendant,  was  seized  in 
fee  of  said  premises,  that  he  had  a  good  right  to  convey  the  same 
as  aforesaid,  that  the  said  premises  were  free  and  clear  of  all  in- 
cumbrances, and  that  he,  the  said  defendant,  would  warrant  and 
defend  the  said  premises  against  the  lawful  claims  of  all  persons 
whatsoever;  and  the  said  plaintiff  in  fact  saith  that  the  said 
premises  were  not  free  and  clear  of  all  incumbrances  at  the  time 
the  said  deed  of  conveyance  was  executed  and  delivered  by  the 
said  defendant  to  the  said  plaintiff ;  but  on  the  contrary,  that,  on 
the  said          day  of  ,  a.  d.  18     ,  one  B  F  held  a  mortgage  on 

the  said  premises,  executed  and  delivered  by  the  said  defendant 
before  the  said        day  of  ,  a.  d.  18     ,  to  the  said  E  F,  to 

secure  the  payment  of  the  sum  of  $  ,  with  interest  from  and 
after  the         day  of  ,  a.  d.  18     ;  and  the  said  plaintiff  saith 

that,  to  remove  said  incumbrance,  he,  the  said  plaintiff,  hath  paid 
to  the  said  E  F  the  sum  of  $        ,  on  the         day  of  ,  a.  D. 

18  ,  and  then  notified  the  said  defendant  thereof,  and  requested 
the  said  defendant  to  repay  to  the  said  plaintiff  the  said  sum  of 
8  ;  yet  the  said  defendant  has  not  paid  said  sum  of  money,  or 
any  part  thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays,  etc. 


Where  the  action  is  on  the  covenant  of  seizin,  the  breach  may 
be  assigned  by  the  negation  of  the  words  of  the  covenant,  if  the 
grantor  was  never  in  possession ;  but  under  our  decisions,  the 
averment  may  be  required  to  be  more  particular  ;  as  that  the  said 
defendant  was  not  in  fact  seized  of  said  premises,  but  that  one 
B  F  held  and  occupied  the  same  adversely  to  the  rights  of  tin'  said 
defendant  at  the  time  of  the  delivery  of  said  deed,  whereby  said 
plaintiff  was  prevented   from   obtaining  possession   and   seizin    in 


448  FORMS   OP   PETITIONS. 


fact  of  said  premises.  In  such  a  ease,  the  amount  to  be  recovered 
would  be  the  purchase  money  and  interest  from  date  of  deed. 

When  the  vendee  was  seized  in  fact,  under  his  grantor,  he  can 
not  sue  until  evicted.  The  petition  in  such  a  case  must  state  the 
making  of  the  deed  and  the  covenants  of  warranty,  and  then  aver 
that  the  said  defendant  was  not  seized  in  fee  of  said  premises,  and 
has  not  defended  the  same  against  the  lawful  claims  of  all  persons; 
hut  the  said  plaintiff  avers  that  one  E  F,  at  the  time  the  said  de- 
fendant made  his  said  conveyance  and  covenant,  was  seized  in  fee 
of  said  premises ;  and  that  the  said  B  F,  on  the         day  of  , 

A.  D.  18  ,  commenced  an  action  in  the  Court  of  Common  Pleas, 
for  the  county  of  ,  against  the  said  plaintiff,  to  recover  from 

him  the  possession  of  the  said  premises,  and  that  such  proceedings 
were  had  in  said  action,  that  afterward,  at  the  term.  A.  D. 

18  ,  the  said  E  F  recovered  a  judgment  against  the  said  plaintiff 
for  the  said  premises,  and  that  afterward,  on  the         day  of  , 

A.  D.  18  ,  the  said  plaintiff  was  evicted  from  the  possession  of  the 
said  premises  under  and  by  virtue  of  the  aforesaid  judgment ;  and 
so  the  said  plaintiff  avers  that  the  said  defendant  has  not  kept  his 
said  covenant,  but  has  broken  the  same,  to  the  damage  of  the  said 
plaintiff  $ 

The  damages  in  this  case  will  be  the  consideration  paid  and  four 
years'  interest.  The  statute  of  limitations  cuts  off  any  claim  for 
mesne  profits  for  a  longer  term  than  that,  and  hence  interest  is 
limited  to  that  time.    Backus  v.  McCoy,  3  Ohio,  211 ;  10  Ohio,  317. 

Notice  to  a  warrantor  need  not  be  given,  and  hence  not  averred, 
before  a  suit  can  be  brought.     King  v.  Kerr's  Adm'r,  5  Ohio,  154. 

When  there  has  not  been  an  eviction,  something  equivalent 
must  be  averred.  In  King  v.  Kerr's  Adm'r,  5  Ohio,  154,  an  aver- 
ment of  an  application  for  the  benefit  of  the  occupying  claimant 
law,  and  the  verdict,  and  of  the  amount  paid  to  the  plaintiff  in 
ejectment,  was  held  equivalent  to  an  eviction.  In  Tuite  v.  Miller, 
5  West.  Law  J.  413 ;  17  Ohio,  69,  the  court  held  that  where  dower 
had  been  assigned  in  the  value  of  the  one-third  of  the  rents  and 
profits,  and  made  a  charge  on  the  land,  this  might  well  be  con- 
sidered equivalent  to  eviction.  But  where  a  gross  sum  was  decreed 
for  dower,  and  ordered  to  be  enforced  by  execution,  it  was  held  not 
to  be  an  eviction.  The  statute  does  not  authorize  such  a  decree 
for  dower.  Johnson  v.  Nyce's  Ex'r,  17  Ohio,  66.  The  party  must 
show  that  the  dower  has  been  assigned  according  to  law ;  other- 
wise it  can  not  be  held  to  be  equivalent  to  an  eviction.  Nyce's 
Ex'r  v.  Oberty,  17  Ohio,  71. 


FORMS    OP   PETITIONS.  449 

The  averment  of  the  breach  in  each  of  these  cases  must  be 
special,  setting  forth  the  facts  showing  the  eviction. 

124.  GRANTEE   V.    GRANTOR. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  A.  D.  18     ,  by 

his  deed  of  that  date,  sealed  with  his  seal  and  duly  executed,  at- 
tested, and  acknowledged,  in  consideration  of  8  ,  bargained, 
sold,  and  conveyed  to  the  said  plaintiff  and  his  heirs  certain  lands, 
in  the  said  deed  particularly  described,  in  fee  simple;  and  the  said 
defendant  did,  by  said  deed,  covenant  with  the  said  plaintiff,  his 
heirs  and  assigns,  that  he,  the  said  defendant,  would  warrant  and 
defend  the  said  premises  against  the  lawful  claims  of  all  persons 
whatever  ;  and  the  said  plaintiff  saith  that  the  said  defendant  did 
not,  and  would  not,  after  the  execution  and  delivery  of  said  deed, 
warrant  and  defend  said  premises  against  the  lawful  claims  of  all 
persons  whatever;  but,  on  the  contrary  thereof,  the  said  plaintiff 
avers  that  the  said  defendant  had  not  then,  at  the  execution  of 
said  deed,  a  good  and  sufficient  title  to  the  said  premises ;  but  that 
the  freehold  and  paramount  title  in  the  said  premises  was  then, 
and  has  continued  to  be,  up  to  the  ouster  and  dispossession  herein- 
after stated,  in  other  persons  ;  and  by  virtue  of  which  said  para- 
mount title,  the  said  plaintiff  was  afterward,  on  the  day  of 
,  a.  d.  18  ,  ousted  and  dispossessed  of  the  said  premises  by  due 
course  of  law,  contrary  to  the  said  deed  and  covenant  of  the  said 
defendant,  and  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained. 

N0TE. — it  would  seem  as  though  this  general  form  was  sufficient 
in  all  cases;  so  held  in  10  Wheat.  449;  6  Cowen,  122;  2  Saund. 
181,  n.  10. 

125.  ASSIGNEE   V.  GRANTOR. 

(The  petition  may  be  like  the  last,  except  using  the  name  of  the  first 
grantor  instead  of  the  word  "  defendant "  up  to  the  statement  of  the 
deed  and  covenant;  than  proceed:)  And  the  said  plaintiff  further 
saith  that  the  said  B  V  (first  grantor)  afterward,  on  the  day 
of  ,  a.  d.  18    ,  by  liis  deed  of  that  date  duly  executed,  in 

consideration  of  8         ,  sold  and  conveyed  said    premises  to  ono 
L  M,  his  heirs  and  assigns,  and  the  said  L  M  afterward,  on  tho 
vol.  1—29 


•{."I)  FORMS   OF   PETITIONS. 


day  of  ,  a.  p.  18     ,  by  his  deed  duly  executed,  in  considera- 

tion of  $  ,  sold  and  conveyed  said  premises  to  the  said  plaint- 
iff, his  heirs  and  assigns  forever.  And  the  said  plaintiff  saith  that, 
by  virtue  of  said  conveyance,  ho  afterward  entered  into  said  prem- 
ises, and  -was  thereof  possessed ;  and  the  said  plaintiff  further 
avers,  (state  the  breach  as  in  last  form,  or  specifically,  like  other  forms, 
if  deemed  expedient.) 

126.    HEIRS   V.  GRANTOR. 

(After  stating  the  deed  and  covenant  as  in  previous  form,  proceed  as 
folloics :)  And  the  said  B  JM  afterward  entered  into  the  said  lands 
and  tenements,  and  was  thereof  possessed  in  fee  simple,  and  that 
the  said  B  M,  while  so  possessed,  afterward  departed  this  life,  and 
that  the  said  premises  descended  to  the  said  plaintiffs  as  the  heirs 
of  the  said  B  M ;  and  that  the  said  plaintiffs  afterward  entered  into 
the  said  premises,  and  were  thereof  possessed  as  of  an  estate  in  fee 
simple,  and  continued  so  seized  until  afterward  ousted  and  dispos- 
sessed as  hereinafter  stated.     (Here  state  the  breach  as  before.) 

XVIII.   On  Special  Contracts. 

127.    AGAINST     ONE     FOR   NEGLECT   IN    GIVING    NOTICE     OF     NON-PAY- 
MENT   OF   BILL,  ETC. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the         day  of  ,  a.  p.  18     ,  at 

,  was  the  holder  of  a  certain  bill  of  exchange,  drawn  under 
date  of  ,  a.  p.  18     ,  by  one  ,  and  directed  to  one  , 

of  ,  thereby  requesting  the  said  to  pay  to  one  , 

or  order,  in  days  after  date,  $         ,  at  the  bank  of  , 

in  ,  and  that  the  said  bill  of  exchange  was  duly  indorsed  by 

the  to  the  said  plaintiff;  and  the  said  plaintiff  further  saith 

that,  on  the  said        day  of  ,  a.  p.  18     ,  he,  the  said  plaintiff, 

delivered  to  the  said  defendant  the  said  bill  of  exchange  for  pre- 
sentation to  the  said  ,  for  acceptance  and  payment ;  and  the 
said  defendant,  for  a  valuable  consideration,  then  promised  the 
said  plaintiff  that  he  wTould  diligently  present,  or  cause  to  be  pre- 
sented, the  said  bill  of  exchange  to  the  said  ,  and  procure 
the  same  to  be  accepted  and  paid  by  the  said  ,  unless  such  ac- 
ceptance and  payment  should  be  refused ;  and  in  case  of  such  non- 
acceptance  and  non-payment,  or  either,  he,  the  said  defendant, 
would  give  all  necessary  and  proper  notices  to  charge  the  said, 
(drawer,)  as  such  drawer,  and  the  said,  (indorser,)  as  such  indorser 


FORMS    OF   PETITIONS.  451 


of  said  bill  of  exchange ;  and  the  said  plaintiff  avers  that  the  said 
did  refuse  to  accept,  or  pay  the  said  bill  of  exchange,  and 
that  the  said  defendant  did  not  give,  or  cause  to  be  given,  to  the 
said  ,  and  ,  the  notices  necessary  to  charge  the  said 

,  as  drawer,  and  the  said  ,  as  indorser  of  the  said  bill 

of  exchange,  whereby  the  said  plaintiff  has  lost  the  whole  amount 
named  in  the  said  bill  of  exchange,  to  his  damage  $ 

The  said  plaintiff  therefore  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained.  A  B, 

By  ,  his  Attorney. 

This  is  taken  from  the  case  of  Commercial  Bank  of  Penn.  v. 
Union  Bank  of  N.  Y.,  1  Kcrnan,  203.  The  banker  receiving  a  bill 
for  collection  is  responsible  for  any  neglect  in  making  a  demand 
and  giving  notices  by  which  the  holder  is  injured.  Allen  v.  The 
Merchants'  Bank,  22  Wend.  215  ;  Montgomery  County  Bank  v.  The 
Albany  City  Bank,  3  Selden,  459;  Fabens  v.  Mercantile  Bank,  23 
Pick.  330;  Bank  of  Orleans  v.  Smith,  3  Hill,  560.  So  where  the 
receiving  bank  remits  the  bill  to  its  agent  at  the  place  of  payment, 
the  first  bank  is  alone  responsible  to  the  holder,  and  the  second 
bank  to  the  first.  Such  is  the  doctrine  in  New  York ;  but  in  Massa- 
chusetts, 23  Pick.  330,  it  is  held  that  the  bank  receiving  the  note 
or  bill  and  remitting  it,  is  not  liable  for  the  neglect  of  the  agent  to 
whom  it  is  remitted  for  collection.  Vide  also  4  Har.  &  Johns.  140  ; 
6  Conn.  528. 

128.  ON  CONTRACT  TO  EMPLOY  ONE  AS  ATTORNEY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  foi 
that  heretofore,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  in  con- 

sideration that  the  said  plaii  tiff,  at  the  request  of  the  said  defend- 
ant, had  agreed  to  become  the  permanent  attorney  and  solicitor  of 
the  said  defendant,  and  to  act  as  such  for  reasonable  reward,  to  be 
therefor  paid  by  the  said  defendant  to  the  said  plaintiff  for  hip 
services  in  that  behalf,  he,  the  said  defendant,  promised  the  said 
plaintiff  to  retain  and  employ  him  as  such  permanent  attorney  and 
solicitor;  and  the  said  plaintiff  saitb  that,  alter  the  making  of  the 
said  agreement  and  in  pursuance  thereof,  the  said  defendant  did 
then  in  fact  retain  and  employ  (he  said  plaintiff  as  such  permanent 
attorney  and  solicitor  as  aforesaid ;  and  the  said  plaintiff  did  then 
b<  come,  and  was,  and  acted  as  the  permanent  attorney  and  solicitor 

Of  -aid  defendant,  and  hath  always  from  thence  been  ready  and 
Willing  t<;  continue  to  ad  as  the  permanent  attorney  ami  solicitor 


452  FORMS   OF   PETITIONS. 


of  the  said  defendant;  of  which  the  said  defendant  had  at  all  times 
notice ;  yet  the  said  defendant,  disregarding  his  said  promise,  did 
not,  nor  would  permit  or  suffer  the  said  plaintiff  to  continue  to  be 
the  attorney  and  solicitor  of  the  said  defendant,  or  to  act  as  such, 
but  afterward,  and  before  the  commencement  of  this  action,  to  wit, 
on  the         day  of  ,  A.  D.  18     ,  without  the  consent  of  the  said 

plaintiff  and  against  his  will,  appointed  certain  other  persons,  to  wit, 
,  to  be  the  attorneys  and  solicitors  of  the  said  defendant,  and 
wrongfully,  and  without  any  just  or  reasonable  cause  for  so  doing, 
discharged  the  said  plaintiff  from  being  or  acting  as  the  attorney 
and  solicitor  of  the  said  defendant,  and  deprived  him  of  all  gains 
and  profits  which  could  have  arisen  or  accrued  to  the  said  plaintiff 
in  that  behalf,  to  the  damage  of  the  said  plaintiff  $ 

The  said  plaintiff,  therefore,  demands  judgment  against  the  said 
defendant  for  the  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

129.    SPECIAL   COUNT  FOR   SAME. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  on  the         day  of  ,  a.  d.  18     ,  it  was  agreed  by  and  be- 

tween the  said  plaintiff  and  the  said  defendant,  that  from  the 
day  of  ,  a.  d.  18     ,  then  next,  the  plaintiff,  as  the  attorney  and 

solicitor  of  the  said  defendant  should  receive  and  accept  a  salary 
of  $  per  annum,  in  lieu  of  rendering  an  annual  bill  of  costs  for 
general  business  transacted  by  the  plaintiff  for  the  defendant,  as 
such  attorney  and  solicitor,  and  should,  and  would,  for  such  salary 
of  $  per  annum,  advise  and  act  for  the  said  defendant,  (the pros- 
ecuting or  defending  of  suits,  the  preparation  of  bonds,  or  other  secu- 
rities for  advances  made  by  the  said  defendant  and  moneys  disbursed 
by  the  plaintiff  being  accepted,  and  the  plaintiff  being  allowed,  in  respect 
of  such  matters,  to  make  the  usual  and  regular  charges  of  an  attorney 
and  solicitor,)  and  that  the  plaintiff  should  attend  the  secretary  of 
the  said  defendant,  as  well  as  the  board  of  directors  thereof,  and 
the  meetings  of  the  proprietors  thereof,  when  required ;  and  the 
said  agreement  being  so  made,  afterward,  on  the         day  of  , 

in  the  year  aforesaid  in  consideration  that  the  plaintiff  had  at  the 
request  of  the  defendant,  promised  the  said  defendant  to  perform 
and  fulfill  the  same  in  all  things  on  his  part,  the  said  defendant 
promised  the  plaintiff  to  perform  and  fulfill  the  same  in  all  things 
on  his  part,  and  to  retain  and  employ  the  plaintiff  as  such  attorney 
and  solicitor  of  the  defendant  on  the  terms  aforesaid ;  and  although 
the  said  defendant  did,  for  a  certain  small  space  of  time  thereafter, 


FORMS   OF   PETITIONS.  453 

to  wit,  for  four  months,  in  pursuance  and  fulfillment  of  said  agree- 
ment and  promise  in  that  behalf,  retain  and  employ  the  plaintiff 
as  such  attorney  and  solicitor  on  the  terms  aforesaid,  and  did  pay 
him  a  small  part  of  the  said  salary,  to  wit,  $  ;  and  although 
the  plaintiff  was  at  all  times,  from  the  making  of  the  said  agree- 
ment hitherto,  read}'  and  willing  to  advise  and  act  for  said  defend- 
ant, and  accept  the  said  salary  on  the  terms  aforesaid,  and  in  all 
other  respects  to  fulfill  the  said  agreement  on  his  part,  of  which 
the  said  defendant  always  had  notice;  yet  the  said  defendant,  dis- 
regarding his  said  agreement,  did  not,  nor  would  continue  to  re- 
tain and  employ  the  said  plaintiff  as  such  attorney  or  solicitor  of  the 
said  defendant  on  the  terms  aforesaid,  but,  on  the  contrary  thereof, 
afterward,  to  wit,   on  the  day  of  ,  a.  d.  18     ,  wrong- 

fully and  without  any  reasonable  cause,  dismissed  and  discharged 
the  said  plaintiff  from  such  employment  and  retainer,  and  then, 
and  from  thence  hitherto,  has  wholly  refused  to  retain  or  employ 
him  as  such  attorney  and  solicitor  of  the  said  defendant,  or  to  pay 
him  the  salary  aforesaid;  by  reason  of  which  the  said  plaintiff  has 
wholly  lost  and  been  deprived  of  the  said  salary  of  $  ,  and  also 
of  divers  gains  which  he  might  and  otherwise  would  have  derived 
from  such  employment  in  and  about  the  prosecuting  and  defending 
of  divers  suits  brought  by  and  against  the  said  defendant,  and  in 
preparing  divers  bonds,  contracts,  and  securities  for  said  defend- 
ant and  otherwise,  to  the  damage  of  the  said  plaintiff  § 

The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  §  ,  his  damages  so  as  aforesaid  sus- 
tained. 

These  two  counts  are  copied  from  the  case  of  Emmons  v.  Elder- 
ton,  representing  the  Church  of  England  Life  and  Fire  Assurance 
Trust  and  Annuity  Company,  20  Eng.  L.  &  Eq.  1.  The  special 
count  was  held  good  in  the  Exchequer  Chamber,  and  also  in  the 
House  of  Lords,  though  the  Court  of  Common  Pleas  had  arrested 
the  judgment  on  it.  The  ground  of  decision  in  the  Common  Pleas 
was  that  the  promise  to  retain  and  employ  was  more  comprehen- 
sive than  the  agreement  first  set  forth.  It  is  considered  as  settled 
law  that  a  (••unit,  of  this  nature  is  had.  if  the  promise  is  more  ex- 
tensive than  the  promise  which  is  implied  by  law  as  arising  from 
the  pasl  consideration.     The  agreemenl   hinds   the   company  to 

conti •  the  relation  of  employer  and  employed  at  Least  fora  year. 

Per  Compton,  J.  The  words  " retain "  and  "employ,"  as  used  in 
the  present  case,  are  a  mere  amplification  of  the  preceding  con- 


454  FORMS   OP   PETITIONS. 


tract  of  hiring  and  service.  These  words  are  used  in  the  prece- 
dents continually  as  meaning  hiring,  engaging,  and  keeping  a 
person  in  a  service,  and  do  not  necessarily  imply  that  the  master  is 
bound  to  supply  the  servant  with  any  particular  work  whilst  the 
illation  subsists.  lb. ;  Fawcet  v.  Cash,  5B.&  Ad.  908.  The  term, 
it  was  agreed,  makes  the  words  of  the  agreement  those  of  both 
parties  ;  and  where  two  parties  agree  that  one  shall  accept  and  re- 
ceive a  yearly  salary  of  $1,000  as  attorney  and  solicitor  of  the 
other,  and  for  a  particular  class  of  business,  it  is  necessarily  im- 
plied that  the  other  shall  pay  it,  and  at  the  end  of  the  year.  It  is 
not  to  be  paid  simply  and  at  all  events  at  the  end  of  the  year,  but 
as  a  reward  for  the  services  of  the  other  as  an  attorney  and  solic- 
itor, for  his  attendance  and  advice  when  required,  and  being  ready 
to  give  it  whenever  it  should  be  asked,  at  all  times  during  that 
year.  Per  Parke,  B. :  I  feel  quite  satisfied  that,  in  such  a  case  as 
this,  there  is,  upon  a  true  construction  of  this  agreement,  an  im- 
plied agreement  upon  the  defendants  below  to  retain  the  plaintiff, 
and  to  employ  the  plaintiff,  in  the  sense  in  which  I  understand 
this  word,  for  one  year  at  least.  lb. ;  Beetson  v.  Collier,  4  Bing. 
309 ;  Gandall  v.  Pontigny,  1  Starkie,  198  ;  Hartley  v.  Harman,  11 
Ad.  &  El.  798 ;  Hopkins  v.  Logan,  5  M.  &  W.  241 ;  Kaye  v.  Dutton, 
7  Man.  &  Gr.  807;  Bainbridge  v.  Firmstone,  8  Ad.  &  El.  743; 
Thornton  v.  Jennings,  1  Man.  &  Gr.  166 ;  Pilkington  v.  Scott,  15 
M.  &  W.  657 ;  Aspdin  v.  Austin,  5  Q.  B.  671 ;  Dunn  v.  Sayles,  lb. 
685. 

130.    ON    STOCK    CALLS    BY   CORPORATION. 

The  said  complains  of  the  said  C  D,  for  that  the  said 

plaintiff  is  a  corporation  organized  under  the  law  of  the  State  of 
,  with  a  capital  of  8         ,  divided  into  shares  of  $50  each,  to 
construct  and  run  a  railroad  from  ,  in  the  county  of  , 

through  the  counties  of  ,  to  ,  in  the  said  county  of  ; 

and  that,  on  the         day  of  ,  A.  d.  18      ,  the  capital  stock  of 

said  corporation  had  been  all  subscribed  and  taken  according  to 
law  by  divers  persons;  and,  on  the  day  of  ,  a.  d.  18      , 

the  said  C  D  had  subscribed  to  and  was  then  the  owner  of 
shares  of  the  capital  stock  of  said  corporation  ;  and  that  on  said 
day  of  ,  a.  d.  18     ,  the  directors  of  said  corporation  duly 

made  a  call  upon  the  stockholders  of  said  corporation  for  the  pay- 
ment by  each  stockholder  of  the  sum  of  on  each  share  of 
said  capital  stock  thereof,  to  be  paid  to  ,  the  treasurer  of  said 
corporation,  at  his  office,  in  ,  on  or  before  the  day  of  , 
a.  d.  18     ,  (Jiere,  in  same  language,  state  all  calls  made  up  to  the 


FORMS   OF   PETITIONS. 


455 


time  and  then  payable.)  of  all  which  the  said  defendant  had  due  and 
legal  notice ;  yet  the  said  C  D,  though  often  requested  so  to  do, 
hath  not  paid  said  several  sums  of  money,  nor  either  of  them,  nor 
any  part  thereof,  but  hitherto  hath  wholly  neglected  and  refused 

so  to  do. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  said  sum  of  $  ,  {amount  of  all  calls  sued  for.)  with 
interest  on  8        from  the        day  of  ,  a.  d.  18     ,  and  on  $ 

from  the        day  of  ,  a.  d.  18     . 

S  N,  Att'y  for  Plaintiff. 

The  subscriptions  must  be  payable  in  money,  and  in  nothing 
else.     Ilenry  v.  Vermillion  &  Ashland  E.  E.  Co.,  17  Ohio,  187.     It 
would  seem  that  calls  can  not  be  made  until  the  whole  stock  is 
subscribed,  unless  the  charter  provides  otherwise.     Redfield  on 
Railroads,  79,  No.  3;  Stoneham  Branch  Eailway  Co.  v.  Gould,  2 
,Gray,  277;  Salem  Milldam  Co.  v.  Eopes,  6  Pick.  23;  S.  C,  9  lb. 
187  ;  Cabot  &  West  Sp.  Bridge  Co.  v.  Chapin,  6  Cush.  50  ;  War.  & 
Nash.  Railway  Co.  r.  Hinds.  8  Cush.  110 ;  Lex.  &  West  Cam.  Eail- 
way Co.  v.  Chandler,  13  Metcalf,  312  ;  N.  H.  Central  v.  Johnson, 
10  Foster,  390 ;  J.  &  C.  E,  E.  Co.  v.  Pratt,  -40  Maine,  447  ;  Penob. 
E.  E.  Co.  v.  Dummer,  40  Maine,  172  ;  Same  v.  White,  20  Law,  689. 
If  completed  after  suit,  no  action  can  be  maintained.    N.  &  L.  Nav. 
Co.  v.  Theobold,  1  Moody  &  M.  151 ;  Stratf.  &  M.  E.  E.  Co.  v.  Strat- 
ton,  2  B.  &  Ad.  518  ;  Atlantic  Cotton  Mills  v.  Abbott,  9  Cush.  423 ; 
Littleton  Manuf.  Co.  v.  Parker,  14  N.  H.  543;  Contoocook  Valley 
Railway  Co.  v.  Parker,  32  N.  H.  363.     There  must  be  a  strict  com- 
pliance with  all  conditions  precedent   and  the  law,  in  order  to  en- 
able a  corporation  to  collect  calls.     The  amount  of  capital  stock 
should  be  given  on  the  above  authorities,  and  also  it  should  be 
averred  that  all  the  stock  was  taken/as  that  fact  is  a  condition 
precedent  to  the  right  to  make  calls.    The  reason  of  this  must  be 
apparent  to  every  thinking  mind.      A  railroad  is  projected;  its 
capital  i>  fixed  ;it  the  amouni  which  will  be  required  to  construct 
it.     There  will  be  no  reason  in  making  calls  until  the  slock  is  sub- 
scribed, as  the  road  can  nut  otherwise  be  made.     The  ten  per  cent. 
required  to  be  paid  in  on  subscription,  is  required  to  be  paid   as  a 
fund  lor  preliminary  expenses  in  obtaining  subscriptions,  making 
surveys,  etc.     Until,  however,  capital  enough  is  obtained  to  con- 
struct the  road,  there  is  no  need  of  calls.     Indeed,  each  subscriber 
takes  stock  on  the  condition  thai  the  capital  is  lo  be  subscribed, 

and    so  the   making  of  the  mad  secured.     The  same   is  true  of  a 


456  FORMS   OF   PETITIONS. 


manufacturing  corporation.  To  make  calls  on  a  capital  of 
$1,000,000,  on  a  subscription  of  $200,000  of  stock,  is  a  mere  waste 
of  money,  because  the  road  can  not  be  made  with  any  such  sum, 
and  the  money  collected  will  only  be  wasted. 

131.    ON   SPECIAL   CONTRACT   TO   SELL. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  agreed 

with  the  plaintiff  to  buy  of  him,  said  plaintiff,  and  the  plaintiff 
then  agreed  with  the  said  defendant  to  sell  to  the  said  defendant 
certain  goods,  to  wit,  fifty  tons  of  iron,  at  and  for  the  price  of  £9 
per  ton,  the  said  goods  to  be  delivered  forthwith  by  the  said 
plaintiff  to  said   defendant,  at  the  works  of  the  said  ,  and 

the  said  price  to  be  paid  by  said  defendant  to  said  plaintiff,  in  cash, 
in  fourteen  days  from  the  time  of  the  making  of  the  said  contract; 
and  thereupon  the  said  plaintiff  promised  said  defendant  to  sell 
and  deliver  said  iron  as  aforesaid,  and  the  said  defendant  promised 
the  said  plaintiff  to  pay  him  for  the  said  fifty  tons  at  the  rate  and 
at  the  time  aforesaid ;  yet  the  said  plaintiff  saith  that,  although  the 
said  period  of  fourteen  days  from  the  time  of  making  said  contract 
had  elapsed  before  the  commencement  of  this  suit,  and  although 
the  plaintiff  has  in  all  things  performed  and  fulfilled  the  said  con- 
tract on  his  part  to  be  performed,  yet  the  said  defendant  has  not 
paid  said  sum  of  $  ,  the  price  of  said  iron,  nor  any  part 

thereof. 

Wherefore  the  said  plaintiff  prays  judgment  for  said  sum  of 
&        ,  together  with  interest  from  the        day  of  ,  a.  d.  18     . 

A  B,  Attorney  for  Plaintiff. 

This  form  will  be  found  in  the  report  of  the  case  of  Staunton  v. 
"Wood,  7  Eng  L.  &  Eq.  411.  A  plea  was  interposed  that  the  iron 
had  not  yet  been  delivered ;  and  the  court  held  that  the  delivery 
was  a  condition  precedent  to  the  right  to  recover  the  price.  It 
seems,  therefore,  that  the  general  averment  that  the  plaintiff  had 
in  all  things  performed  and  fulfilled  the  said  contract  on  his  part  to 
be  performed,  was  sufficient  to  include  the  averment  of  a  delivery. 
An  averment  might  be  made  that  the  iron  had  been  delivered ;  but 
the  plaintiff  claimed  a  right  to  recover,  if  the  money  was  not  paid 
in  the  fifteen  days,  though  the  iron  was  not  then  delivered.  The 
court  rightly  held  that  a  delivery  was  a  condition  precedent  to  the 
right  to  be  paid. 


FORMS   OF   PETITIONS.  457 


132.    AGAINST    RESIDUARY    LEGATEE   WHO    HAS   GIVEN    BOND   TO   PAY 

DEBTS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  and 
G  II,  for  that  the  said  C  D,  as  principal,  and  the  said  E  F  and 
Cr  II.  as  his  sureties,  on  the         day  of  ,  a.  d.  IS     ,  made  their 

certain  undertaking  of  that  date,  and  then  and  there  delivered  the 
same  to  the  probate  judge  of  said  county,  and  thereby  acknowl- 
edged themselves  to  be  indebted  to  the  State  of  Ohio  in  the  sum 
of  S  ,  conditioned  that,  whereas  one  made  his   last  will 

and  testament,  and  thereby  devised  all  the  residue  of  his  estate  to 
the  said  C  D,  and  appointed  him  executor  of  the  same,  which  will 
has  this  day  been  admitted  to  probate,  and  said  C  D  qualified  as 
executor ;  now,  if  the  said  C  D  shall  pay  all  and  singular  the  debts 
and  dues  owing  by  the  said  intestate  to  any  and  all  persons,  and 
pay  all  legacies  given  in  said  will,  then  this  undertaking  shall  be 
void,  otherwise  to  be  and  remain  in  full  virtue  and  force  in  law, 
which  undertaking  was  duly  delivered  and  accepted  by  said  pro- 
bate judge,  and  duly  placed  on  file  in  his  court;*  and  the  said 
plaintiff  saith  that  at  the  time  of  the  death  of  said  testator,  he, 
the  said  testator,  was  indebted  to  the  said  plaintiff  in  the  sum  of 
8  ,  for  goods,  before  the  death  of  said  testator,  sold  and  deliv- 

ered to  him  in  his  lifetime  at  his  request;  which  sum  is  now  due 
and  payable  :  yet  neither  the  said  testator  in  his  lifetime,  nor  has 
the  said  C  D  since  his  decease,  nor  the  said  E  F  and  (i  II,  nor 
cither,  nor  any  of  them,  have  paid  said  sum  of  money,  nor  any 
part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendants for  said  sum  of  8         ,  with  interest  from  the         day  of 

,  A.  D.  18       . 

T  W,  Attorney  for  Plaintiff. 

There  need  be  no  averment  of  demand  of  the  party  assuming  to 
pay.  Stevens  v.  Eartley,  13  Ohio  St.  525.  If  the  undertaking  is 
under  Beal,  it  may  be  described  as  their  writing  obligator)',  instead 
of  undertaking. 

It'  the  debl  is  evidenced  by  note,  the  averments  will  be  that  the 
said  testator  made  his  certain  promissory  note  in  writing,  and  then 

delivered  it  to  the  plaintiff,  or  to  some  other  person  who  indorsed 

it,  to  plaintiff.     In  other  words,  the  cause,  of  action  will  be  set  out 

ju-t  OS  though  the  suit   was  against  the  testator  himself. 

The  undertaking  or  bond  under  the  statute  is  an  absolute  under- 


458  FORMS   OP   PETITIONS. 


taking  to  pa}7  all  the  debts  and  legacies  of  said  testator.  He  is  not 
then  required  to  return  any  inventory  or  settle  any  account  with 
the  Probate  Court.  His  promise  to  pay,  backed  up  by  his  sureties, 
is  the  means  for  the  payment  of  debts  ;  though  creditors,  not  paid 
in  ease  of  insolvency  of  the  parties  to  the  undertaking,  might,  by  a 
bill  in  chancery,  subject  any  of  the  estate  left  undisposed  of  to  the 
payments  of  debts  and  legacies. 

This  form  is  briefer  than  the  one  in  the  case  above  cited  ;  but  it 
is  sufficient,  because  the  bond  or  undertaking  recites  all  the  other, 
essential  facts.  The  giving  of  the  undertaking,  the  existence  of 
the  debt  due  plaintiff,  and  its  non-payment,  are  all  the  facts  neces- 
sary to  create  the  legal  liability  to  pay.  The  undertaking  or  bond 
will  be  set  out  either  in  copying  it  or  according  to  its  legal  effect. 
The  form  must  be  varied  according  to  the  words  of  the  bond  or 
undertaking. 

On  the  construction  to  be  given  to  this  clause  of  our  statute,  we 
may  consult  the  decision  in  Massachusetts  and  New  Hampshire, 
from  whose  statutes  this  provision  was  borrowed,  I  think,  in  1840. 
See  Clarke  v.  Tufts,  5  Pick.  337  ;  Thompson  v.  Brown,  16  Mass.  172  ; 
Stebbinsy.  Smith,  4  Pick.  97  ;  Bobinson  v.  Leavitt,  7  N.  H.  73,  84. 
These  cases  show  the  meaning  attached  to  this  provision  of  allowing 
a  residuary  legatee  to  give  a  bond  to  pay  debts  and  legacies.  Par- 
ker, C.  J.,  in  Clark  v.  Tufts,  says  :  "  The  legislature  has  made  such 
bond  a  substitute  for  the  estate  of  the  deceased,  so  that  there  is  no 
longer  any  lien  upon  the  real  or  personal  estate  of  the  testator  by 
his  creditor,  after  the  executors  shall  have  conveyed  the  same  to  a 
bona  fide  purchaser.  .  .  .  By  express  provision  of  the  statute, 
an  executor  so  situated  is  not  obliged  to  return  any  inventory,  pre- 
sent any  list  of  debts  or  claims,  or  settle  any  account." 

The  same  form  will  answer  for  the  non-payment  of  a  legacy. 
Set  out  the  bond  or  undertaking  as  in  the  above  form  down  to  the 
*,  and  proceed  as  follows  : 

FOR   A    LEGACY. 

And  the  said  plaintiff  avers,  that  the  said  testator  by  his  said 
last  will  and  testament  devised  to  the  said  plaintiff  a  legacy,  to  wit, 
the  sum  of  $  ,  and  that  since  said  will  was  admitted  to  probate, 
and  said  undertaking  was  made  and  delivered  as  aforesaid,  more 
than  one  year  has  elapsed,  and  that  said  plaintiff  did,  on  the 
day  of  ,  a.  D.  18     ,  demand  payment  of  said  C  I)  of  said  sum 

of  8  ,  the  legacy  so  in  said  will  given  to  said  plaintiff;  yet  the 
said  C  D  unjustly  refused  and  neglected  to  pay  the  said  legacy,  or 


FORMS   OP   PETITIONS.  459 


any  part  thereof,  and  hitherto  hath  refused,  and  still  does  refuse 
and  neglect,  to  pay  the  same,  or  any  part  thereof. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendants for  said  sum  of  $         ,  together  with  interest  from  the 
day  of  ,  a.  d.  18 

The  legacy  bears  interest  at  any  rate  from  the  end  of  one  year 
from  and  after  the  granting  of  letters  of  administration.  In  a  case 
of  this  kind,  as  the  executor  takes  the  use  of  the  estate  at  once, 
I  think  he  ought  to  pay  interest  from  probate  of  the  will.  If  this 
is  not  done,  the  executor  puts  in  his  own  pocket  the  interest  on  all 
legacies,  which  is  not  reasonable,  since  the  residue  is  given  to  him 
subject  to  their  payment.  The  devise  of  the  residue  and  the  lega- 
cies take  effect  at  the  same  instant  of  time,  and  the  liability  to  pay 
arises  at  that  instant. 

133.    ON   SPECIAL   CONTRACT   TO   PAT   FREIGHT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  on  the         day  of  ,  A.  D.  18     ,  in  consideration  that  plaint- 

iff had  received  on  board  of  a  certain  vessel  (or  steamboat,  as  case 
may  be.)  of  the  plaintiff,  called  the  ,  then  about  to  set  sail  on 

a  certain  voyage  (or,  about  to  start  on,  if  a  river  steamboat)  from  the 
port  of  to  the  port  of  ,  certain  goods  and  merchandise  of 

defendant,  to  be  conveyed  in  the  said  vessel  (or,  steamboat)  on  tho 
said  voyage,  upon  the  terms  that  the  defendant  should,  two  months 
after  the  said  vessel  should  have  set  sail  on  said  voyage,  pay  to  the 
said  plaintiff  in  ,  (the  place  where  goods  shipped,  or  any  other 

place  where  it  was  to  be  paid,)  freight  in  advance,  at  the  rate  of 
0  per  ton  measurement  for  each  ton  of  the  said  goods  so  re- 

ceived on  hoard  the  said  vessel,  and  also  primage  at  the  rate  of 
per  cent,  on  said  freight,  the  defendant  then  promised  said  plaintiff 
to  pay  him  in  the  said  freight  in  advance,  at  the  rate  aforesaid 
and  also  said  primage  at  the  expiration  of  the  said  period  of  two 
months  after  the  said  vessel  should  set  sail  on  said  voyage ;  and 
the  plaintiff  aaith  thai  there  was  received  on  said  vessel  goods  and 
merchandise  of  said  defendanl  amounting  to  tons  by  meas* 

orement,  the  freight  on  which  amounted  to  $  ,  and  t  lie  primage 
on  which  freighl  amounted  to  8  ,  amounting  in  all  to  $  ,  and 
that  said  vessel  Be1  sail  from  the  said  port  of  ,on  the  day  of  , 
a.  i).  is  .  on  her  voyage  aforesaid,  and  thai  more  than  two  months 
had  elapsed  since  the  Betting  sail  of  said  vessel  as  aforesaid  before 
the  commoncemenl  of  this  suit  ;  yet  the  said  defendant,  disregard- 


460  FORMS   OP    PETITIONS. 


ing  his  said  promise,  has  not  paid  said  freight  and  primage,  to  wit, 
the  said  sum  of  $  ,  nor  any  part  thereof. 

Wherefore  the  plaintiff  prays  judgment  against  said  defendant 
for  said  sum  of  $  ,  together  with  interest  thereon  from  the 

day  of  ,  a.  d.  18     . 

IBL,  Attorney  for  Plaintiff. 

This  is  the  declaration  in  the  case  of  Tindall  v.  Taylor,  4  Ellis 
&  Bl.  219  ;  S.  C,  82  Eng.  C.  L.  219.  To  this  declaration  the  de- 
fendant plead  that  after  the  delivery,  and  before  sailing,  and 
after  a  reasonable  time  for  her  to  have  sailed,  and  a  reasonable  time 
before  she  did  sail,  he  demanded  said  goods  to  be  delivered  back, 
and  plaintiff  refused.  The  plaintiff  replied  that  after  said  goods  were 
received  and  before  notice  to  redeliver,  the  captain  had  signed  bills 
of  lading  to  deliver  the  goods  to  D  at  P,  and  defendant  had  sent 
forward  one  of  the  bills  to  D  before  the  notice.  The  defendant  re- 
joined that  D  was,  and  plaintiff  knew  he  was,  only  the  agent  of 
defendant,  and  having  no  interest  in  the  bills  of  lading.  The 
plaintiff  demurred  to  the  rejoinder,  and  the  court  sustained  said 
demurrer,  holding  that  a  person  who  has  shipped  goods  on  a  gen- 
eral ship  is  not  entitled  at  pleasure  to  demand  them  back  without 
the  payment  of  freight.  Lord  Campbell,  C.  J. :  "  We  entirely  agree 
to  the  law  as  laid  down  by  Lord  Tenterden  in  his  treatise  (8  ed. 
595),  and  in  Thomson  v.  Trail,  2  Car.  &  P.  334 ;  S.  C,  12  Eng.  C.  L. 
153,  when  applied  to  a  general  ship,  that  '  a  merchant,  who  has 
laden  goods,  can  not  insist  on  having  them  relanded  and  delivered 
to  him  without  paying  the  freight  that  might  become  due  for  the 
carriage  of  them  and  indemnifying  the  master  against  the  conse- 
quences of  any  bill  of  lading  signed  by  him.'  It  is  argued  that 
there  can  be  no  lien  on  the  goods  for  freight  not  yet  earned  or  due ; 
but  when  the  goods  were  ladened  to  be  carried  on  a  particular  voy- 
age, there  was  a  contract  that  the  master  should  carry  them  in  the 
ship  upon  that  voyage  for  freight;  and  the  general  rule  is,  that  a 
contract  once  made  can  not  be  dissolved  except  with  the  consent  of 
both  the  contracting  parties.  ...  It  would  be  most  unjust  to 
the  owners  and  master  of  the  ship,  if  we  were  to  hold  that  ujjon  a 
simple  demand  at  any  time  the  goods  must  be  delivered  back  in 
the  port  of  outfit ;  and  the  case  of  Thompson  v.  Small,  1  Com. 
B.  328;  S.  C,  50  Eng.  C.  L.,  the  case  relied  upon  by  Mr.  Willes,  is 
no  authority  for  such  a  doctrine."  A  general  ship  or  vessel  is  one, 
which  is  employed  by  the  master  or  owners,  on  a  particular  voyage, 
and  is  hired  by  a  number  of  persons,  unconnected  with  each  other, 


FORMS   OF   PETITIONS.  4G1 


to  convey  their  respective  goods  to  the  place  of  destination.  1  Bouv. 
L.  D.  558.  It  will  be  seen  by  this  definition  that  all  our  steamboats, 
with  scarcely  an  exception,  are  what  are  called  general  ships,  since 
they  run  particular  voyages,  and  take  from  individuals  whatever 
goods  they  respectively  have  to  ship.  Hence  this  decision  applies 
to  our  river  steamboats  as  much  as  to  a  sea-going  vessel. 

Lord  Campbell  continues :  "  After  the  master,  at  the  request  of 
the  defendant,  had  signed  bills  of  lading  for  the  goods,  making 
them  deliverable  to  a  consignee  at  the  port  of  destination,  one  of 
which  bills  of  lading  he  had  transmitted  to  the  consignee,  it  is 
quite  clear  that  the  defendant  could  have  no  right  to  the  redelivery 
of  the  goods  in  the  port  of  outfit  on  merely  demanding  them.  The 
rejoinder  alleges  that  the  consignees  were  the  agents  of  the  de- 
fendant, and  held  the  bill  of  lading  only  as  such  agents;  but,  as 
such  agents,  the  consignees  might  have  had  authority  to  indorse 
the  bill  of  lading  to  a  purchaser  of  the  goods,  who,  as  assignee  of 
the  bill  of  lading  for  a  valuable  consideration,  would  have  become 
proprietor  of  the  goods,  and  entitled  to  demand  them  from  the 
mafffcer."  Andrew  v.  Moorhouse,  5  Taunt. 435  ;  S.  C,  1  Eng.  C.  L. ; 
Saunders  r.  Drew,  3  B.  &  Ad.  445 ;  S.  C,  23  Eng.  C.  L. ;  Blakely 
v.  Dixon,  2  B.  &  P.  321 ;  Abbott  on  Shipping,  8  ed.  595  ;  Thomp- 
son v.  Doming,  14  M.  &  W.  403 ;  Hastier  v.  Couturier,  9  Exch.  102. 

134.    FOR   DISMISSING   A    CORRESPONDENT   CONTRARY   TO   AGREEMENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  on  the         day  of  ,  a.  d.  18     ,  in  consideration  that 

the  said  plaintiff,  at  the  request  of  said  defendant,  would  enter  into 
the  employ  of  the  defendant  in  the  capacity  of  European  corre- 
spondent of  a  certain  periodical  or  newspaper  called  the  New  York 
Courier  and  Enquirer,  for  a  certain  time  then  understood  and 
agreed  upon  between  said  plaintiff  and  said  defendant,  to  wit,  from 
the  day  and  year  aforesaid,  until  said  service  should  bo  de- 
termined by  due  and  customary  notice  in  that  behalf  on  cither 
side,  to  wit,  (here  state  how  service  to  be  terminated,)  at  and  for  a 
certain  salary  then  agreed  upon,  to  wit,  (here  set  out  the  salary  per 
month  or  year,")  the  defendant  assumed  and  promised  to  retain 
plaintiff  in  said  capacity,  and  to  pay  him  the  said  salary  so  as  afore- 
said agreed  upon,  ami  to  continue  him  in  such  service  and  employ 
until  the  same  should  be  determined,  as  aforesaid  provided  for  in 
that  behalf;  and  the  said  plaintiff  saith  that  ho  entered  into  and 
upon  said  service  and  employ,  in  tho  capacity  and  on  the  terms 
aforesaid,  and  was  always  ready  and  willing  to  continue  therein 


4G2  FORMS   OP   PETITIONS. 


on  the  terms  aforesaid  ;  yet  the  said  defendant,  disregarding  his 
said  promise,  did,  on  the         day  of  ,  A.  D.  18     ,  wrongfully 

discharge  said  plaintiff  from  said  service  and  employ,  without  any 
previous  notice,  as  aforesaid  provided,  and  without  any  reasonable 
or  probable  cause  therefor,  whereby  the  plaintiff  was  thrown  out 
of  any  employment  for  the  space  of  ,  and  lost  great  gains  by 

reasons  thereof,  and  was  otherwise  greatly  injured ;  to  his  damage 

8 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

S  N,  Attorney  for  Plaintiff, 

This  form  is  taken  from  the  report  of  the  case  of  Gould  v.  Webb, 
4  Ellis  &  Bl.  933  ;  S.  C,  82  Eng.  C.  L.  933. 

135.     ON   CONTRACT,    WHERE   BREACH     OCCURS   BEFORE    DAY   OP    EXE- 
CUTION. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
that  heretofore,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  in  con- 

sideration that  the  plaintiff,  at  the  request  of  the  said  defendant, 
would  agree  with  the  defendant  to  enter  into  the  service  and  em- 
ployment of  said  defendant,  in  the  capacity  of  a  courier,  on  a 
certain  day  then  to  come,  to  wit,  on  the       day  of  ,  A.  d.  18     , 

and  serve  the  said  defendant  in  that  capacity,  and  travel  with  him 
on  the  continent  of  Europe  as  a  courier,  for  three  months  certain, 
from  the  day  and  year  last  aforesaid,  and  to  be  ready  to  start  with 
the  defendant  on  such  travels  on  the  day  and  year  last  aforesaid, 
at  and  for  certain  wages  or  salary,  to  wit,  at  and  at  the  rate  of 
$  for  each  and  every  month  of   such  service,  to  be  therefor 

paid  by  said  defendant  to  the  said  plaintiff,  the  said  defendant  then 
agreed  with  said  plaintiff,  and  then  promised  him  that  he,  said  de- 
fendant, would  engage  and  employ  said  plaintiff  in  the  capacity 
of  a  courier  on  and  from  the  said         day  of  ,  a.  d.  18     ,  for 

three  months  from  the  day  and  year  last  aforesaid,  and  pay  said 
plaintiff  during  the  continuance  of  such  service  and  employment 
for  the  same  the  said  wages  or  salary  of  $  for  each  and  every 
month  of  such  service ;  and  the  plaintiff  avers  that  he,  confiding 
in  the  said  agreement  and  promise  of  said  defendant,  did  then,  to 
wit,  on  the  day  and  year  last  aforesaid,  agree  with  said  defendant 
to  enter  into  the  service  and  employment  of  said  defendant  in  the 
capacity  aforesaid,  on  the         day  of  ,  A.  D.  18     ,  and  to  serve 

said  defendant  in  that  capacity,  and  to  travel  with  him  on  the  con- 


F0IUIS   OP   PETITIONS.  4G3 

tinent  of  Europe  as  a  courier,  for  three  months  certain,  from  the 
day  and  year  last  aforesaid,  at  and  for  the  wages  and  salary  last 
aforesaid  ;  and  that  from  the  time  of  the  making  of  the  aforesaid 
agreement,  and  of  the  said  promise  of  said  defendant,  until  the 
time  when  the  defendant  wrongfully  refused  to  perform  and  hroke 
his  said  promise,  and  absolved,  exonerated,  and  discharged  the 
plaintiff  from  the  performance  of  his  agreement  as  hereinafter 
mentioned,  he,  the  said  plaintiff,  was  always  ready  and  willing  to 
enter  into  the  service  and  employ  of  said  defendant  in  the  capacity 
aforesaid,  on  the  dajT  aforesaid,  and  to  serve  the  defendant  in  that 
capacity,  and  to  travel  with  him  on  the  continent  of  Europe  as  a 
courier,  for  three  months  certain,  from  the  day  and  year  last  afore- 
said, and  to  start  with  said  defendant  on  the  day  and  year  last 
aforesaid,  at  and  for  the  wages  and  salary  aforesaid  ;  and  the 
plaintiff,  but  for  the  breach  by  said  defendant  of  his  said  promise 
as  hereinafter  mentioned,  would,  on  the  said  day,  have  entered  into 
the  said  service  and  employ  of  said  defendant  in  the  capacity, 
upon  the  terms,  and  for  the  time  aforesaid  ;  of  all  which  said  sev- 
eral promises  the  said  defendant  had  notice  and  knowledge  ;  yet 
the  said  defendant,  not  regarding  the  said  agreement  and  promise, 
afterward  and  before  the  said         day  of  ,  A.  D.  18     ,  (the  (lay 

service  to  begin,)  wrongfully  and  wholly  refused  and  declined  to  en- 
gage or  employ  said  plaintiff  in  the  capacity  and  for  the  purpose 
aforesaid,  on  or  from  the  said         day  of  ,  A.  D.  18     ,  for  three 

months,  or  on,  from,  or  for  any  other  time,  or  to  start  on  such 
travels  with  the  plaintiff  on  the  day  and  year  last  aforesaid,  or  in 
any  manner  whatsoever  to  perform  or  fulfill  his  said  promise,  and 
then  wrongfully  wholly  absolved,  exonerated,  and  discharged  the 
plaintiff  from  his  said  agreement,  and  from  the  performance  of  said 
agreement  on  his,  the  plaintiffs,  part,  and  from  being  ready  and 
willing  to  perform  the  same  on  his,  the  plaintiffs,  part,  and  that 
said  defendant  then  wrongfully  broke,  put  an  end  to,  and  de- 
termined  his  said  promise  and  engagement,  whereby  an  action  hath 
accrued  to  the  plaintiff;  to  Ids  damage  $ 

Wherefore  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  $         ,  his  damages  so  sustained. 

ET11,  Attorney  for  Plaintiff. 

The  above  is  a  copy  of  the  declaration  in  the  case  of  Hachster 
v.  De  la  Tom-.  20  Bng.  L.  ,V  Eq.  157;  8,  0.,  li  E.  &  B.  678.     There 

are  probably  some  a oessary  averments;  the  main  averments 

are:  1.  The  oiler  of  plaintiff;  -1.  The  terms  of  that  offer;  :;.  The 


464  FORMS   OP   PETITIONS. 


acceptance  of  the  offer  by  plaintiff  in  the  terms  of  the  offer;  4.  The 
readiness  of  plaintiff  to  enter  upon  the  service  at  the  time  fixed, 
and  the  renunciation  by  defendant  of  the  agreement  communicated 
to  plaintiff,  and  the  date  of  it.  The  court  held  he  could  maintain 
an  action  at  once  for  a  breach  of  the  contract.  The  cases  are 
cited  in  the  note  to  the  next  form.  The  principle  is  that  if  one 
disables  himself  for  performing  a  contract  to  be  executed  at  a  fu- 
ture day  he  can  be  sued  at  once ;  and  that  the  renunciation  of  a 
contract  communicated  to  the  other  party  Avill  have  the  same  ef- 
fect. This  form  will  enable  the  pleader  to .  form  one  to  suit  any 
kind  of  an  agreement. 

13G.  ON  A  PROMISE  TO  MARRY,  ON  A  REFUSAL  BEFORE  DAY  AGREED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  heretofore,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  in 

consideration  that  the  said  plaintiff,  being  then  sole  and  unmar- 
ried, at  the  quest  of  the  said  defendant,  had  then  promised  the  said 
defendant  to  marry  him,  the  said  defendant,  at  the  time  herein- 
after stated,  the  said  defendant  then  promised  said  plaintiff  to 
marry  her,  the  said  plaintiff,  on  the  death  of  E  F,  the  father  of 
said  defendant ;  and  the  plaintiff  avers  that,  relying  on  said  prom- 
ise of  said  defendant,  she  has  always  from  thence  hitherto  and 
still  remains  sole  and  unmarried,  and  is  still  ready  and  willing  to 
marry  said  defendant  on  the  death  of  the  said  E  F,  whereof  the 
said  defendant  had  always  had  notice  ;  yet  the  said  defendant,  not 
regarding  his  said  promise,  afterward,  to  wit,  on  the  day  of 

,  A.  D.  18  ,  announced  to  the  said  plaintiff  his  intention 
and  determination  not  to  marry  said  plaintiff  on  the  death  of  the 
said  E  F,  his  father  aforesaid,  and  of  not  fulfilling  his  said  promise 
to  said  plaintiff,  and  wholly  broke  off  said  engagement  and  wholly 
abandoned  the  society  of  said  plaintiff,  whereupon  the  plaintiff,  as 
she  lawfully  might,  notified  said  defendant  that  she  elected  to  treat 
said  promise  as  terminated,  and  said  engagement  broken  off  and 
abandoned  by  said  defendant,  whereupon  she  sues  without  waiting 
for  the  death  of  said  C  F  ;  all  to  the  damage  of  plaintiff  $     '    . 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  $         ,  her  damages  as  aforesaid  sustained. 

DBH,  Attorney  for  Plaintiff. 

The  case  on  which  this  petition  is  framed  is  reported  in  L.  E.,  5 
Exch.  322  ;  7  Exch.  Ill,  Trost  v.  Knight.  The  court  of  exchequer 
chamber  held  that  the  action  would  lie,  while  the  court  of  ex- 


FORMS   OF    PETITIONS.  465 


chequer  had  decided  the  other  Tray.  The  court  held  that  where  a 
party  had  abandoned  a  contract  and  refused  to  execute,  the  other 
party  might  sue  at  once,  and  was  not  bound  to  wait  until  the  time 
for  its  execution  had  expired.  Cockburn,  C.  J.:  "The  cases  of 
Lovelock  v.  Franklyn,  8  Q.  B.  371,  and  Short  v.  Stone,  8  Q.  B.  358, 
which  latter  case  was  an  action  for  breach  of  promise  of  marriage, 
had  established  that  where  a  party  bound  to  the  performance  of  a 
contract  at  a  future  time  puts  it  out  of  his  own  power  to  fulfill  it, 
an  action  will  at  once  lie.  The  case  of  Hachster  v.  De  la  Tour,  2 
E.  cV-  B.  678;  S.  C,  20  Eng.  L.  &  Eq.  157,  upheld  in  this  court  in 
the  Danube  and  Black  Sea  Co.  v.  Xexos,  13  C.  B.,  N.  S.  825,  went 
further,  and  established  that  notice  of  an  intended  breach  of  a  con- 
tract, to  be  performed  in  futuro,  had  a  like  effect. 

"  The  law  with  reference  to  a  contract  to  be  performed  at  a  future 
time,  where  the  party  bound  to  the  performance  announces  prior 
to  the  time  his  intention  not  to  perform  it,  as  established  by  the 
cases  of  Hachster  v.  !>e  la  Tour,  2  E.  &  B.  G78,  and  the  Danube  and 
Black  Sea  Co.  v.  Xenos,  18  C.  B.,  N.  S.  825,  on  the  one  hand;  and 
Avery  c.  Bowdcn,  5  E.  &  B.  714;  Beid  v.  Hoskins,  6  E.  &  B.  953; 
and  Barwick  v.  Buba,  2  C.  B.,  N.  S.  563,  on  the  other, — may  be 
thus  stated  :  The  promisee,  if  he  pleases,  may  treat  the  notice  of 
intention  as  inoperative,  and  await  the  time  when  the  contract  is 
to  be  executed,  and  then  hold  the  other  party  responsible  for  all 
the  consequences  of  non-performance ;  but  in  that  case  he  keeps 
the  contract  alive  for  the  henefit  of  the  other  party  as  well  as  his 
own  :  he  remains  subject  to  all  his  own  obligations  and  liabilities 
under  it,  and  enables  the  other  party  not  only  to  complete  the  con- 
tract, if  so  advised,  notwithstanding  his  previous  repudiation  of  it, 
but  also  to  take  advantage  of  any  supervening  circumstances 
which  would  justify  him  in  declining  to  complete  it. 

"  On  the  Other  hand,  the  promisee  may,  if  he  thinks  proper,  treat 
the  repudiation  of  the  other  as  a  wrongful  putting  an  end  to  the 
contract,  and  may  at  once  bring  his  action,  as  on  a  breach  of  it; 
and  in  BUch  action  he  will  be  entitled  to  such  damages  as  would 
have  arises  from  the  non-performance  of  the  contract  at  the  ap- 
pointed time,  subject,  however,  to  abatement  in  respect  of  any  cir- 
cumstances which  may  have  afforded  him  the  means  of  mitigating 
taeloss.  After  full  consideration  we  are  of  the  opinion  thai,  not- 
withstanding the  distinguishing  circumstances  to  which  we  have 
referred,  this  case  falls  within  the  principle  of  Hachster  v.  Do  la 
vol.  i — 30 


466  FORMS    OP   PETITIONS. 


Tour,  3  E.  &  B.  G78,  and  that  consequently  the  present  action 
will  lie." 

The  distinguishing  circumstance  referred  to  by  the  judge  was 
that,  in  the  case  of  Ilachster  v.  De  la  Tour,  the  promise  was  to 
execute  the  contract  at  a  fixed  time,  and  here  the  time  was  indefi- 
nite, to  wit,  on  the  death  of  the  father.  Philpotts  v.  Evans,  5  M. 
&  W.  IT."") ;  Ripley  v.  McClure,  4  Exch.  359;  Wilkinson  v.  Verity, 
L.  R,  G  C.  P.  206 ;  Burtis  v.  Thompson,  42  N.  Y.  246.  In  this  last 
case,  it  was  held  that  where  the  parties  having  entered  into  an  en- 
gagement to  many  "in  the  fall,"  the  defendant  announced  to  the 
plaintiff  in  October  that  he  would  not  perform  the  contract,  an 
action  might  bo  commenced  immediately ;  and  that  an  action  for  the 
breach  of  a  promise  will  lie  at  once  upon  a  positive  refusal  to  per- 
form a  contract  of  marriage,  although  the  time  specified  for  the 
performance  had  not  arrived. 

In  Short  v.  Stone,  it  was  held  that  a  man  who  had  promised  to 
marry  a  woman  on  a  future  day,  and  before  the  day  arrives,  mar- 
ries another,  is  instantly  liable  for  an  action  for  the  breach  of 
promise  of  marriage. 

137.   ACTION    ON     COVENANT    NOT   TO    KEEP   A    PUBLIC-HOUSE   WITHIN 
A   CERTAIN    DISTANCE    OP   ANOTHER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  before  and  at  the  time  of  making  the  contract  hereinafter 
stated,  the  said  C  D  was  possessed  of  certain  premises  with  build- 
ings thereon  and  used  by  said  defendant  as  a  public-house,  known 
and  called  the  ,  situate  at  ,  in  the  county  of  ; 

and  being  so  possessed  and  wishing  to  dispose  of  the  same,  the  said 
defendant  did,  on  the         day  of  ,  a.  d.  18     ,  agree  with  the 

said  plaintiff  to  sell  him  the  said  •public-house  with  the  good-will 
and  appurtenances  thereunto  belonging,  for  the  sum  of  $  ,  and 
further  agreed  not  to  keep  and  carry  on  a  public-house  within 
miles  of  the  place  so  agreed  to  be  sold,  and  the  said  plaintiff 
agreed  with  said  defendant  to  buy  said  public-house  for  the 
price  and  covenant  aforesaid  ;  and  the  said  defendant  did  sell  and 
convey  said  premises  as  aforesaid  to  said  plaintiff,  and  did  then 
and  there  enter  into  a  covenant  in  writing  with  said  plaintiff, 
whereby  said  defendant  did  then  covenant  to  and  with  said  plaint- 
iff that  he  would  not  thereafter  keep  or  carry  on  a  public-house 
within  miles  of  said  premises,  and  that  if  he  did  so  do,  he 

would  pay  the  plaintiff  the  sum  of  $  ,  as  liquidated  damages 
for  such  breach  of  said  covenant   and  the  plaintiff  says  that  he 


FORMS   OP   PETITIONS.  4G7 


accepted  said  conveyance  and  said  written  covenant,  and  did  then  pay 
(or.  secure  to  be  paid)  to  the  said  defendant  the  said  sum  of  8  ; 
yet  the  said  defendant,  not  regarding  his  said  covenant,  did  after- 
ward, to  wit.  on  the  day  of  ,  a.  d.  18  ,  keep  and  carry 
on  a  public-house  contrary  to  the  terms  of  said  covenant,  at  , 
in  said  count}'  of  and  within  miles  of  said  public-house 
so  sold  by  said  defendant  to  said  plaintiff  as  aforesaid,  whereby  an 
action  has  accrued  to  have  and  demand  from  the  said  defendant 
the  said  sum  of  8  ,  so  agreed  to  be  paid  as  liquidated  damages 
for  a  breach  of  said  covenant. 

Wherefore  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  8 

S  N,  Attorney  for  Defendant. 

This  is  drawn  on  the  case  of  Mouflet  v.  Cole,  L.  E.,  7  Exch.  70 ; 
S.  C,  1  Eng.  177.  The  onl}T  question  there  presented  was  how  the 
distance  named  in  the  covenant  was  to  be  measured.  The  cov- 
enant was  not  to  keep  a  public-house  within  one-half  mile  of  the 
one  sold.  The  court  held  it  was  to  be  measured  as  the  crow  flies, 
that  is,  by  a  straight  line  from  the  one  house  to  the  other.  Wing 
v.  Earle,  Cro.  Eliz.  212;  Woods  v.  Dennett,  2  Starkie  K  P.  89 ; 
Leigh  v.  Hind,  9  B.  &  C.  774;  Eegina  v.  Inhabitants  of  Saffron 
Waldon,  9  Q.  B.  76;  Stokes  v.  Grissell,  14  C.  B.  G78;  Lake  v.  Bul- 
ler,  G  E.  &  B.  92;  Jewel  v.  Stead,  G  E.  &  B.  350;  Duigman  v. 
Walker,  28  L.  J.  Ch.  8G7 ;  Atkins  v.  Kineir,  4  Exch.  776.  When 
the  course  of  a  deed  is  from  one  point  to  another,  it  calls  for  a 
straight  line.  Jenks  v.  Morgan,  6  Gray,  448;  Allen  v.  Kingsbury,. 
16  Pick.  235. 

138.    COMMON   COUNT   WITII   ASSIGNMENT. 

A  B  complains  of  said  C  D,  for  that  C  D,  heretofore,  to  wit,  on 
the         day  of  ,  A.  D.  18     ,  was  indebted   to  one  E  F,  in  the 

sum  of  dollars  and  cents  for  work,  labor,  and  services 

and  material  furnished  (or,  for  money  before  that  time  had  and 
received  by  said  defendanl  to  and  for  the  use  of  one  E  F,  or  for 
bo  much  money  before  thai  time  paid,  laid  out,  and  expended  by 
one  B  P,  to  and  for  the  use  of  Baid  defendant  and  at  Ins  special  in- 
stance  and  request,)  i<>  and  for  the  use  of  said  defendant  and  at  his 
Bpecial  instance  and  requesl  ;  and  thai  afterward  the  said  E  l\  for  a 
valuable  consideration,  assigned  and  transferred  the  said  claim  and 
the  money  due  thereon  to  the  said  plaintiff,  of  all  which  said  «!<•- 
fendant  had  notice;  and  the  plaintiff  avers  that  said  sum  of  money 


4GS  FORMS   OP   PETITIONS. 


is  now  due  and  payable,  and  yet  said  defendant,  though  often  re- 
quested to  pay  the  Kime,  has  hitherto  and  does  still  neglect  and 
refuse  to  pay  said  sum  of  money  or  any  part  thereof  to  said  plaintiff- 
Wherefore  said  plaintiff  demands  judgment  against  said  defend- 
ant for  said  sum  of  $  ,  together  with  interest  thereon  from  the 
day  of  ,  A.  D.  18     . 

S  N,  Attorney  for  Plaintiff. 

139.      ON     WARRANTY     THAT     DEFENDANT     HAD     RIGIIT     TO     PERMIT 
PLAINTIFF   TO   PUBLISH   A   WORK. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff  was  the  proprietor  of  a  certain  literary 
periodical  called  "  The  Parlor  Library,"  and  was  desirous  of  pub- 
lishing therein  a  certain  work  of  which  one  E  F,  deceased,  was  the 
author;  and  that  the  said  defendant  did,  on  the         day  of  , 

A.  d.  18  ,  represent  that  he  was  the  son  and  executor  of  said 
E  F,  and  had  the  right  and  authority  to  grant  to  the  plaint- 
iff a  legal  license  to  so  publish  the  said  work,  Qiere  state  the  title 
of  it,~)  in  his  said  periodical ;  and  that  the  said  defendant  on  the 
said  •     da}'  of  ,  A.  D.  18     ,  in  consideration  that  the  said 

plaintiff  would  pay  to  the  said  defendant  the  sum  of  $  for  the 
license  and  permission  to  publish  the  said  work,  called  (here  set  out 
name,)  in  said  literary  periodical,  promised  the  said  plaintiff  that 
he,  said  defendant,  then  had  sufficient  right,  title,  and  authority  at 
law  and  in  equity,  to  sell  and  grant  such  license  and  permission  ; 
and  the  said  plaintiff  avers  that  he  did  then  pay  to  the  said  defend- 
ant the  said  sum  of  $  on  the  consideration  and  for  the  purpose 
aforesaid ;  but  the  said  plaintiff  avers  that  said  defendant  broke 
his  said  promise  in  this,  that,  at  the  time  of  the  making  of  said 
promise  and  contract,  the  said  defendant  had  no  such  right,  title, 
or  authority  to  grant  and  sell  said  license  and  authority  to  publish 
said  work  as  aforesaid;  but  that,  on  the  contrary,  at  the  time  of  the 
making  of  such  promise  and  contract,  one  was  equitably  the 

proprietor  and  owner  of  the  copyright  of  said  work,  and  had  the 
sole  and  exclusive  right,  title,  and  authority  to  grant  such  license 
and  permission  to  publish  said  work  as  aforesaid;  whereby  the 
said  plaintiff  was  put  to  great  expense,  and  compelled  to  pay  a 
large  sum  of  money  for  publishing  said  work  in  said  periodical  to 
the  said  ,  and  other  injuries  sustained  by  said  plaintiff;  to  his 

damage  $  , 

The  plaintiff,  therefore,  prays  judgment  against  said  defendant 
for  the  said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

S  N,  Attorney  for  Plaintiff. 


FORMS   OP   PETITIONS.  469 


This  is  the  declaration  in  the  case  of  Simms  and  others  v.  Marryatt, 
7  Eng.  L.  &  Eq.  330.  The  question  of  warrant}-  is  elaborately  dis- 
eased. The  court  held  on  the  evidence  there  was  an  express 
warranty.  Lord  Campbell,  C.  J.,  said  :  "  I  am  clearly  of  opinion 
that  the  plaintiffs  are  entitled  to  our  judgment.  It  does  not  seem 
necessary  to  inquire  what  is  the  general  law  as  to  implied  warranty 
of  title  on  the  sales  of  personal  property,  which  is  not  quite  satis- 
factorily settled.  According  to  Marley  v.  Attenborough,  3  Exch. 
500,  if  a  pawnbroker  sells  unredeemed  pledges  he  does  not  warrant 
the  title  of  the  pawner,  but  merely  undertakes  that  the  time  for 
redeeming  the  pledges  has  expired,  and  he  sells  only  such  right  as 
belongs  to  the  pawner."  As  to  implied  warrant}*,  see  Ilibble- 
white  v.  McMorine,  6  M.  &  W.  200;  Show  v.  Eowley,  1G  lb.  810; 
Stephens  v.  Be  Medina,  4  Q.  B.  422. 

140.    ON   SECOND   TRIAL    UNDERTAKING. 

The  said  A  B  complains  of  the  said  C  D,  E  F,  and  G-  II  for  that, 
on  the        day  of  ,  a.  d.  18     ,  the  said  C  D  as  principal,  and 

the  said  E  F  and  G  II  as  his  sureties,  made  and  delivered  their 
certain  undertaking  in  the  words  and  figures  following,  that  is 
to  say :  Whereas  C  D  did  enter  a  notice  at  the  term  of  the 

Court  of  Common  Pleas,  within  and  for  the  county  of  ,  of  a 

certain  demand  for  a  second  trial  in  an  action  wherein  the  said 
A  B  was  and  one  was  ,  and  in  which  action  a 

judgment  had  then  and  there  been  rendered  against  the  said  C  D  ; 
and  whereas  the  said  court  did  then  and  there  fix  the  amount  of 
the  undertaking  in  the  sum  of  8 

Now  we,  the  said  C  D  as  principal,  and  the  said  E  F  and  G  H 
as  sureties,  do  undertake  and  agree  with  the  said  ,  in  the  sum 

of  8  ,  that  the  said  A  B  shall  abide  and  perform  the  order  and 
judgment  of  the  court,  and  pay  all  moneys,  costs,  and  damages 
which  may  be  required  of,  or  awarded  against,  the  said  C  D  conse- 
quenl  upon  said  second  trial;  and  the  said  plaintiff  saith,  that  on 
said  second  trial  in  said  action,  such  proceedings  were  had  therein 
that,  at  the  term,  A.  d.  18    ,  of  said  court,  the  said  re- 

COvered,  by  the  consideration  of  said  court,  a  judgment  against 
the  said  < '  I  >  for  the  sum  of  8  debt,  (or,  damages,)  and  also  his 

r-*»K  in  and  about  his  suit  in  that  behalf  expended,  taxed  to  8  , 
and  thai  afterward,  to  wit,  on  the         day  of  ,  a.  d.  18    , 

id,-  gaid  caused  an  execution  to  be  issued  to  the  sheriff  of 

said  county  on  said  judgment,  which  execution  was  duly  returned 
by  said  sheriff  indorsed,  "  No  goods  or  chattels,  lands  or  tenements 


470  FORMS    OP   PETITIONS. 


of  said  A  B  found  in  my  county  whereon  to  levy,"  of  all  which 
said  defendants  had  notice;  yet  the  said  saith  that  neither 

the  said  C  1),  nor  the  said  B  F  or  G  II,  or  either  of  them,  have 
paid  said  sums  of  $  and  $  ,  his  debt  (or,  damages,)  and  costs 
aforesaid,  nor  any  part  thereof,  whereby  a  right  of  action  hath  ac- 
crued by  law  to  said  plaintiff,  to  have  and  demand  of  said  defendants 
the  said  sum  of  $  ,  his  debt  (or,  damages,)  aforesaid,  and  the 
sum  of  $  ,  his  costs  so  as  aforesaid,  taxed  in  said  action  against 
said  C  D,  and  in  favor  of  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendant for  said  sum  of  $         ,  with  interest  from  the        day  of 
,  a.  d.  18     ;  and  also  for  the  sum  of  $        ,  his  costs  afore- 
said, with  interest  from        day  of  ,  a.  d.  18     . 

Thos.  T,  Attorney  for  Plaintiff 

The  above  is  founded  on  the  form  contained  in  this  work.  Of. 
course  the  undertaking  must  be  set  out  as  it  is.  If  it  is  a  sealed 
instrument,  with  a  condition  attached  to  it,  it  must  be  so  set  out. 
It  is  unnecessary  further  to  refer  to  the  suit  than  it  is  referred  to 
in  the  bond  or  undertaking.  It  is  well  to  put  in  the  averment  as 
to  the  issue  of  an  execution,  as  some  of  the  statutes  require  the 
execution  to  issue  before  a  suit  can  be  prosecuted  on  the  under- 
taking for  a  second  trial.  If  there  is  no  such  provision,  that  aver- 
ment is  unnecessary.  If  it  is  in,  it  need  not  be  proved,  unless 
the  issue  of  the  execution  is  made  a  condition  precedent  to  the 
right  to  sue.  The  undertaking,  by  its  terms,  is  a  positive  promise 
to  pay  if  the  principal  does  not.  There  are  no  authorities  required 
in  support  of  these  plain  propositions. 

141.    ON   AN   APPEAL   BOND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  and 
Gr  H,  defendants,  for  that  heretofore,  to  wit,  on  the         day  of  , 

a.  d.  18  ,  the  said  C  Das  principal,  and  the  said  E  F  and  Gr  H 
as  sureties,  acknowledged  themselves  to  be  held  and  firmly  bound 
unto  A  B  in  the  penal  sum  of  $  ,  to  the  payment  of  which, 
well  and  truly  to  be  made,  the  said  defendants  did  thereby  jointly 
and  severally  bind  themselves,  their  heirs,  executors,  and  adminis- 
trators— sealed  with  their  seals,  and  dated  the  day  and  year 
aforesaid  ;  under  which  was  written  the  condition  following,  that 
is  to  say  :  The  condition  of  the  above  obligation  is  such,  that 
whereas  the  said  C  D  has  taken  an  appeal  from  a  certain  judgment 
rendered  against  him,  and  in  favor  of  A  B,  in  the  Court  of  Com- 


FORMS   OF    PETITIONS.  471 


mon  Pleas  within  and  for  the  county  of  ,  at  the  term, 

A.  d.  18  ,  of  said  court,  for  the  sum  of  8  ,  (or,  for  the  specific 
performance  of  a  real  contract.)  and  8  ,  costs  of  suit,  to  the 
District  Court  within  and  for  said  county  of  .    Now,  if  the  said 

C  D  shall  abide  and  perform  the  order  and  judgment  of  the  said 
District  Court,  and  shall  pay  all  moneys,  costs,  and  damages 
which  may  be  required  of,  or  awarded  against,  the  said  E  P  by  the 
said  court,  then  this  obligation  shall  be  void  :  otherwise  it  shall 
remain  in  full  force  and  virtue  in  law  ;  and  the  said  plaintiff  saith 
that,  afterward,  such  proceedings  were  had  on  said  appeal  in  said 
district  court,  that,  at  its  term,  A.  D.  18     ,  the  said  A  B  re- 

covered a  judgment  against  the  "said  C  D  for  the  sum  of  8  ,  and 
his  costs  taxed  to  8  ;  and  the  said  plaintiff  further  states  that, 
afterward,  to  wit,  on  the         day  of  ,  A.  D.  18     ,  he  caused  an 

execution  to  be  issued  on  said  judgment,  directed  to  the  sheriff  of 
said  county,  for  the  collection  of  said  sums  of  money,  and  that 
said  sheriff  returned  said  execution  indorsed,  "  iSTo  goods  or  chattels* 
lands  or  tenements  of  said  C  D  found  in  my  county  whereon  to 
levy:"  and  plaintiff  saith  that  neither  of  said  defendants  have 
paid  said  several  sums  of  money  so  awarded  against  the  said  C  D, 
nor  any  part  thereof,  whereby  an  action  hath  accrued  to  the  said 
plaintiff  to  have  and  demand  said  sum  of  8  from  said  de- 
fendants. 

The  plaintiff,  therefore,  prays  judgment  against  said  defendants 
for  said  sum  of  8        ,  with  interest  from  the  day  of  , 

A.  D.  18      . 

II  W,  Attorney  for  Plaintiff. 

This  form  is  prepared  for  the  bond  given  in  this  work.  If  an 
undertaking,  and  not  a  formal  bond  is'  given,  the  petition  must 
contain  a  statement  of  a  copy,  or  the  legal  effect  of  it,  in  lieu  of  the 
bond  se1  out  here;  otherwise,  the  other  parts  of  the  petition  will 
be  like  the  above.  There  are  now  in  Ohio  no  appeals  save  in 
chancery  cases;  in  actions  at  law  a  second  trial  is  allowed  instead 
of  an  appeal.  What  1  have  said  as  to  a  second  trial  undertaking 
plicable  to  an  appeal  bond,  or  undertaking. 

142.   AGAINST   RAILROAD   COMPANY  ON   SPECIAL  AGREEMENT. 

The  said  A  15  complains  of  the  said  C  D,  a  corporation  organized 
tinder  the  laws  of  Ohio,  t>>v  that  the  said  defendant  heretofore, 
to  wit,  on  the        day  of  ,18     ,  at  said  county,  in  considera- 

tion thai    the  said   plaintiff  would  prepare  a  reporl   and   maps 


472  FORMS   OF   PETITIONS. 


showing  tlic  mineral  resources  to  bo  found  along  the  line  of  the 
Contemplated  railroad  of  said  defendant,  assumed  and  promised  the 
plaintiff  feo  pay  him  what  the  preparing  and  making  of  said  reports 
and  maps  should  be  reasonably  worth  ;  and  the  plaintiff  avers  that 
relying  on  said  promise  of  said  defendant,  he  did  thereupon  pro- 
ceed to  make  the  necessary  examination  and  survey  of  the  country 
along  the  line  of  said  contemplated  railroad  to  ascertain  the  loca- 
tion, character,  and  quantity  of  mineral  substances  that  might 
there  be  found  and  made  available  for  extracting  the  same,  and 
did  after  such  examination  and  survey,  prepare  in  writing  a  report 
stating  the  result  of  such  examination  and  survey,  and  the  loca- 
tion, character,  and  quantities  of  said  minerals,  with  certain  maps 
to  illustrate  to  the  eye  the  information  and  statements  contained  in 
said  written  report;  and  did  then  deliver  said  report  and  maps  to 
the  said  defendant,  and  that  said  defendant  accepted  the  same  and 
caused  it  to  be  printed  and  distributed  to  divers  persons  as  showing 
the  value  of  said  line  of  railroad  when  completed,  and  thereby 
inducing  capitalists  to  become  interested  therein ;  and  the  said 
plaintiff  further  avers  that  said  labor,  services,  and  time  spent  in 
the  preparation  and  making  of  said  report  and  maps,  was  reason- 
ably worth  two  thousand  dollars,  of  all  which  said  defendant  had 
notice ;  yet  the  said  defendant,  though  often  requested,  has  not 
paid  said  sum  of  dollars,  nor  any  part  thereof. 

Wherefore  the  plaintiff  demands  judgment  against  said  defendant 
for  8         ,  together  with  interest  from  the         day  of  ,  A.  D.  18    . 

J  W,  Attorney  for  Plaintiff. 

143.    ON   SPECIAL   AGREEMENT   TO   DELIVER   SHEEP 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  heretofore,  to  wit,  on  the        day  of  , 

A.  d.  18  ,  agreed  with  the  said  defendant  that  he,  said  plaintiff, 
should  deliver  to  and  put  into  the  possession  of  said  defendant 
two  sheep,  the  property  of  said  plaintiff,  and  that  said  defendant 
Was  to  have  and  keep  said  sheep  so  to  be  delivered,  from  that  day, 
to  wit,  from  the  day  of  ,  A.  D.  18     ,  until  tho  day  of 

,  A.  r>.  18  ;  and  that  said  defendant,  in  consideration  thereof, 
assumed  and  promised  the  said  plaintiff  that  he,  said  defendant, 
would  on  the  expiration  of  the  said  term  of  four  years,  to  wit,  on 
the         day  of  ,  A.  D.  18     ,  return   and  deliver  to  the  said 

plaintiff  four  good  and  healthy  sheep  ;  and  the  said  plaintiff  saith 
that,  in  compliance  with  said  agreement  on  his  part,  he  did,  on  said 
day  of  ,  a.  d.  18     ,  deliver  to  and  put  into  the  possession 


FORMS   OF   PETITIONS.  473 

of  said  defendant,  and  said  defendant  did  then  and  there  receive 
and  aeeept  from  said  plaintiff,  two  sheep,  in  accordance  with  said 
agreement ;  yet  the  said  defendant,  though  said  term  of  years  has 
expired  and  terminated,  has  not  hitherto  returned  and  delivered  to 
the  said  plaintiff  four  good  and  healthy  sheep  as  b}~  his  said  pi'omise 
he  Mas  hound  to  do,  but,  on  the  contrary,  hitherto  hath  neglected 
and  refused,  and  still  does  neglect  and  refuse,  to  return  and  deliver 
said  four  good  and  healthy  sheep  to  the  plaintiff;  to  his  damage  $  . 
Wherefore  said  plaintiff  prays  judgment  against  said  defendant 
for  said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

L  P,  Attorney  for  Plaintiff. 

144.  ON  COUPONS  SEPARATE  FROM  THE  BONDS. 

The  said  A  B,  plaintiff,  complains  of  the  said  ,  a  corpora- 

tion duly  organized  under  a  law  of  the  State  of  ,  for  that,  on 

the         day  of  ,  A.  D.  18     ,  the  said  defendant,  by  its  writing 

obligatory  of  that  date,  acknowledged  itself  to  be  indebted  in  the 
sum  of  8  ,  for  money  before  that  time  borrowed,  to  one  E  F 

,  to  be  paid  to  ,  or  bearer,  on  the  day  of  , 

A.  D.  18  ,  with  interest  at  the  rate  of  per  cent,  per  annum,  pay- 
able halt  yearly  on  the  first  day  of  and  the  first  clay  of 
in  each  year,  at  the  office  of  said  defendant,  in  ,  in  the  county 
of  and  State  of  ,  on  delivery  of  the  warrant  therefor  an- 
nexed to  said  writing  obligatory;  and  that  at  the  date  of  said 
writing  obligatory  there  was  annexed  thereto  an  interest  warrant 
for  the  sum  of  8  ,  being  the  hall' yearly  interest  on  said  writing 
obligatory,  numbered  ,  payable  on  the  first  day  of  , 
a.  d.  18  ,  at  the  office  of  said  defendant,  in  said  city  of  ,  on 
delivery  of  said  interest  warrant;  that  on  the  day  of  , 
A.  D.  18     ,  one              became  and  was  the  holder  and  bearer  of  said 

writing  obligatory,  and  of  the  said  interest  warranl  thereto  then 

annexed,  and  thai  whilst  the  said  was  such  holder  and  hearer 

of  said  writing  obligatory,  the  said  did,  to  wit,  on  the; 

day  Of  ,  A.  T).  18      ,  detach  the  said    interest  warrant   from  the 

said  writing  obligatory)  and,  as  the  owner,  holder,  and  bearer  of 

said  interest  warrant,  did,  on  the  day  of  ,  A.  O.  IS     ,  sell, 

transfer,  and  deliver  for  a  valuable  consideration,  the  said  interest 
warrant  to  tin'  -aid  plaintiff,  who  thereafter  and  still  is  the  owner, 
holder,  and  hearer  of  Said  interest  warrant;  and  that  afterward, 
to  wit.  on  the  day  of  ,  A.  D.  18      ,  the  said    plaintiff  being 

then  such  owner,  holder,  and  bearer  of  said  interesl  warrant,  did 
presenl  said  interest  warrant  to  ,  the  treasurer  of  -aid  de- 


474  FORMS   OF   PETITIONS. 


fondant,  at  its  office  in  said  city  of  ,  and  demanded  payment 

thereof,  and  that  the  said  ,  treasurer  as  aforesaid,  did  then 

and  there  refuse  to  pay,  whereby  an  action  hath  accrued  to  tho  said 
plaintiff  to  recover  of  said  defendant  the  said  sum  of  $  ,  named 
in  said  interest  warrant. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  several  sums,  to  wit,  for  the  sum  of  $  , 

with  interest  on  $  from  the  first  day  of  ,  A.  i».  18      ,  etc. 

(on  each  coupon.) 

N  L,  Attorney  for  Plaintiff. 

This  is  substantially  the  form  found  in  the  case  of  National  Ex- 
change Bank  v.  Hartford,  Providence  &  Fiskill  E.  E.  Co.,  8  E.  I. 
375  ;  S.  C,  5  Am.  582.  The  court  holds  that  these  coupon  bonds 
are  negotiable,  and  also  the  interest  coupons  attached  to  them ;  and 
that  these  interest  coupons  or  warrants  may  be  separated  at  any 
time  from  the  bond  and  transferred  by  delivery,  or  sued  on  by  the 
party  detaching  them  from  the  bond  and  after  the  bond  has  been 
paid. 

Durfed,  J. :  "  We  think  it  settled  by  the  current  of  American  au- 
thority that  a  coupon  bond,  like  those  set  forth  in  the  plaintiff's 
declaration,  is  negotiable,  and  that  its  coupons  are  also  negotiable, 
and  may  be  detached  and  negotiated  by  simple  delivery,  and  sued 
on  separately  from  the  bond.  The  Supreme  Court  of  the  United 
States,  in  White  v.  The  Vermont  &  Massachusetts  E.  E.  Co.,  21 
How.  575,  577,  held  that  such  bonds  were  negotiable,  basing  their 
opinion  on  the  intent  to  give  them  a  negotiable  character,  as  shown 
in  the  form  in  which  they  are  issued  and  put  in  circulation,  and  on 
the  usage  and  practice  of  business  men  dealing  in  them,  as  well  as 
the  decisions  of  the  court."  See,  to  same  effect,  County  of  Beaver 
v.  Armstrong,  44  Penn.  63 ;  Comm'rs  of  Knox  Co.  v.  Aspinwall,  21 
How.  U.  S.  539,  546;  Thompson  v.  Lee  County,  3  Wall.  327.  In 
this  last  case,  the  court  say :  "  It  is  not  necessary  that  the  holder 
of  the  coupons,  in  order  to  recover  them,  should  own  the  bonds 
from  which  they  are  detached.  The  coupons  are  drawn  so  that 
they  can  can  be  separated  from  the  bonds,  and,  like  the  bonds,  are 
negotiable,  and  the  owner  of  them  can  sue  without  the  production 
of  the  bonds  to  which  they  are  attached,  or  without  being  inter- 
ested in  them."  Vide  also  32  Vt.  397  ;  1  Stockton  Ch.  667,  698-700 ; 
8  Gray,  595  ;  27  Penn.  413,  418  ;  3  Kernan,  599;  3  McLean,  472  ; 
Eedfield  on  Eailways,  596,  sec.  239 ;  1  Parsons  on  Contracts,  290, 
291. 


FORMS    OF   PETITIONS.  475 


Each  coupon  is  a  separate  contract ;  hence  there  must  be  a  sep- 
arate count  for  each  coupon,  whether  detached  from  the  same  or 
different  bonds. 

PETITIONS   IN   TORT. 

145.    FOR   KEEPING   A  TICIOUS   DOG. 

County,  ss.,  Court  of  Common  Pleas. 
A  B,  plaintiff,    ~) 

vs.  >  Petition. 

C  J),  defendant.  _) 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  heretofore,  to  wit,  on  the  day  of  ,  a.  d.  18     ,  (the 

exact  time  is  not  material,)  and  from  thence  and  until  and  at  the 
time  of  the  injury  to  the  said  plaintiff  as  hereinafter  mentioned, 
the  said  defendant  wrongfully  and  injuriously  did  keep  a  certain 
dog;  he,  the  said  defendant,  during  all  that  time  knowing  that  the 
said  dog  then  was  used  to  bite  and  attack  mankind ;  and  which 
said  dog  did  afterward,  and  whilst  so  kept  by  the  said  defendant 
as  aforesaid,  to  wit.  on  the         day  of  ,  a.  d.  18     ,  (near  the 

time,)  attack  and  bite  said  plaintiff,  and  greatly  lacerate  and  wound 
him,  the  said  plaintiff,  in  his  right  leg,  (or,  arm,  as  case  may  be,) 
and  thereby  he.  the  said  plaintiff,  became  sick,  sore,  and  lame  for 
a  long  space  of  time,  to  wit,  for  the  space  of  six  months  thence 
next  following,  during  all  of  which  time  the  said  plaintiff  was  pre- 
vented by  said  wounding  from  attending  to  his  usual  business  and 
lawful  affairs  ;  and  was  put  to  great  expense,  to  wit,  to  the  sum 
of  8  ,  in  endeavoring  to  be  cured  of  the  said  wounds  and  lame- 
ness so  as  aforesaid  occasioned;  to  the  damage  of  the  plaintiff  S 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  his  damage  so  as  aforesaid 
sustained. 

Chilly  advises  counts  averring  that  the  dog  was  of  a  ferocious 
and  mischievous  nature,  and  also  for  not  keeping  the  dog  properly  se- 
cured  or  fed,  as  the  facts  may  be.  2  Chitty's  PL  597.  The  former 
i-  only  equivalent  to  the  averment  thai  the  dog  was  accustomed  to 
bite  :  and  yet  the  cases  of  Jones  o.  Perry,  -  Bsp.  482,  and  Cocker- 
ham  v.  Nixon.  11  [redell,  269,  seem  to  make  a  distinction.  In  these 
cases  it  seeme  to  be  supposed  thai  a  dog  of  such  a  disposition  ought 
to  be  kepi  op,  even  though  it  can  doI  be  proved  thai  he  had  bitten 
any  one.  So.  in  a  note  of  Pickering  v.  Orange,  1  Scam.  492,  I  l  , 
8.  Dig.  590,  Bee.  7,  it  is  said  that  where  a  person  keeps  a  dog  or 


47<5  FORMS   OF   PETITIONS. 

other  animal,  which  is  known  to  him  to  bo  of  a  savage  and  fero- 
cious disposition,  he  is  accountable  for  all  the  injury  it  may  do  to 
other  animals.  Yet  it  would  seem  that  such  clog  must  have  done 
mischief;  otherwise  the  owner  will  not  be  liable.  The  ferocious 
character  of  the  dog  can  only  be  evidenced  by  his  acts.  There  are 
three  necessary  averments:  First,  that  the  dog  would  bite  men; 
secondly, that  the  owner  knew  it;  thirdly,  that  he  did  bite  the 
plaintiff'.  When  all  this  is  proved,  it  matters  not  how  carefully  the 
dog  was  kept ;  the  owner  has  no  right  to  keep  such  a  dog  at  all. 
McCaskill  v.  Elliott,  5  Strobh.  196. 

The  scienter  must  be  alleged  and  proved.  1  M.  &  S.  238 ;  2  Salk. 
662;  2  Strange,  1264;  Vrooman  v.  Sawyer,  13  Term,  339;  2  Esp. 
482  ;  4  Camp.  198  ;  1  Starkic,  285  ;  3  C.  &  P.  138  ;  Marsh,  v.  Jones, 
21  Vt.  378. 

This  question  of  keeping  a  dangerous  dog  came  up  in  the  case 
of  Kelley  v.  Tilton,  3  Keys,  263.  Wright,  J.,  delivered  the  opinion 
of  the  court.  He  says  :  "A  person  keeping  a  dog,  knowing  him 
to  be  accustomed  to  bite  mankind,  keeps  him  at  his  own  peril. 
Whoever,  says  the  court,  in  May  v.  Burdett,  9  Adol.  &  Ellis,  N.  S. 
101,  keeps  an  animal  accustomed  to  attack  and  bite  mankind,  with 
knowledge  that  it  is  so  accustomed,  is  prima  facie  liable  in  an 
action  on  the  case,  at  the  suit  of  any  person  attacked  and  injured 
by  the  animal,  without  any  averment  of  negligence,  or  default  in 
the  securing  or  taking  care  of  it.  The  gist  of  the  action  is  the 
keeping  of  the  animal,  with  knowledge  of  its  mischievous  propen- 
sities. Smith  v.  Pelah,  2  Strange,  1264;  Card  v.  Carr,  57  Eng.  C. 
L.  622.  It  is  no  defense,  in  such  a  case,  that  the  animal  is  safely 
kept,  nor  do  I  think  it  a  defense  that  the  party  injured  is  a  tres- 
passer. In  the  case  of  a  dog  of  that  character,  it  is  the  duty  of 
the  owner,  having  notice  of  his  dangerous  habits,  to  kill  him. 
Bolton  v.  Banks,  Cro.  Ch.  254;  Jenkins  v.  Turner,  Lord  Eaymond, 
110.  In  Smith  v.  Pelah,  the  chief  justice  ruled  '  that  if  a  dog  has 
once  bit  a  man,  and  the  owner,  having  notice  thereof,  keeps  the  dog 
and  lets  him  go  about,  or  lie  at  his  door,  an  action  will  lie  against 
him,  at  the  suit  of  a  person  treacling  on  the  dog ;  for  it  was  owing 
to  his  not  hanging  the  dog  at  the  first  notice;  and  the  safety  of 
the  king's  subjects  ought  not  afterward  to  be  endangered:  the 
scienter  is  the  gist  of  the  action.'  It  is  held,  in  the  case  of  Loomis 
v.  Terry,  17  Wend.  496,  that  a  man  may  keep  such  a  dog  for  the 
safety  of  his  property  in  the  night  against  felons,  but  this  seems 
opposed  to  all  the  other  cases,  which  hold  that  such  an  animal  is  a 
nuisance.     But  be  this  as  it  may,  if  a  person  will  keep  a  mis- 


FORMS   OF   PETITIONS.  477 


chievous  animal,  with  knowledge  of  its  propensities,  lie  is  bound 
to  keep  it  secure  at  bis  peril.  May  v.  Burdett,  58  Eng.  C.  L.  99 ; 
Jackson  v .  Smitbson,  15  Mees.  &  Wels.  5G3 ;  Coi-d  v.  Carr,  supra. 
It  is  not,  however,  necessary  to  deny  in  this  case  tbat  it  would  be 
a  good  defense  if  the  dog  were  securely  fastened."  Blair  v.  Fore- 
hand, 100  Mass.  13G;  S.  C,  1  Am.  94. 

14G.    FOR   KEEPING    BOG   ACCUSTOMED   TO    KILL    ANIMALS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  C  D  heretofore,  and  before  the  committing  of  the 
injuries  hereinafter  mentioned,  and  up  to  and  until  the  time  of  the 
said  injury  to  the  cattle  of  the  said  plaintiff,  did  keep  a  certain 
dog,  which  dog  he,  the  said  defendant,  knew  was  accustomed  to 
hurt,  chase,  bite  and  kill  cattle,  horses,  and  other  animals;  and 
that  the  said  dog  did  afterward,  and  while  the  said  defendant  so 
kept  him,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  and  on  divers 

other  days  and  times  between  that  day  and  the  commencement  of 
this  action,  hurt,  chase,  bite  and  worry,  to  wit,  cattle,  (horses, 

etc.,  as  the  case  may  be,)  by  means  whereof,  divers,  to  wit,  (ten)  of 
said  cattle,  etc.,  died,  and  the  residue  thereof  were  greatly  terrified, 
damaged,  and  injured,  and  rendered  of  little  or  no  value  to  the  said 
plaintiff;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
8aid  sum  of  8  ,  his  damages  aforesaid,  in  form  aforesaid  sus- 
tained. 

147.    FOR   SHEEP    KILLED    BY    DEFENDANT'S   DOG. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  before  and  at  the  time  of  the  committing 
of  the  injury  hereinafter  mentioned,  was  the  owner  (or,  harborer,) 
of  a  certain  dog;  and  that  the  said  dog,  while  so  owned  by  the 
said  defendant,  did,  on  the        day  of  ,  a.  d.  18     ,  and  on 

divers  other  days  and  times  between  that  day  and  the  commence- 
ment of  this  action,  kill,  to  wit,  (ten)  sheep  of  the  said  plaintiff, 
and  did  injure  other  sheep  of  said  plaintiff;  to  the  damage  of 

the  -aid  plaintiff  $ 

Wherefore  he  prays  judgment  against  said  defendant  for  the  said 
sum  of  $  ,  his  said  damages  so  as  aforesaid  sustained. 

Our  statute  renders  the  owners  or  harborers  of  dogs  liable  for  all 
damages  they  may  do  to  slice]),  though  the  owner  may  be  ignorant 

that  his  dog  has  ever  injured  sheep.  1  S.  &  C.  71.  As  to  all 
other  animals,  a  scienter  is  still   necessary  to  a  recovery.     In  New 


478  FORMS   OP   PETITIONS. 


York,  it  has  been  decided  that  a  joint  action  does  not  lie  against 
the  separate  owners  of  dogs  by  whom  the  sheep  of  a  third  person 
have  been  worried  and  killed.  Van  Steenberg  v.  Tobias,  17  Wend. 
562.  Each  owner  is  responsible  for  the  injury  done  by  his  own 
dog,  and  no  more.  Auchmuty  v.  Ham,  1  Denio,  495.  In  Ohio, 
suits  in  the  Coiu-t  of  Common  Pleas  have  been  sustained  jointly 
against  the  owners  of  dogs  which  have  in  company  committed  the 
injury.  This  question,  however,  was  neither  argued  nor  raised. 
In  Park  v.  Slack,  7  Barr,  (Pa.)  251,  it  was  held  that  trespass,  as  well 
as  case,  would  lie  against  the  owner  of  a  dog  for  killing  sheep. 
The  same  was  held  as  to  an  injury  caused  by  a  bull.  Dolph  v. 
Ferris,  7  Watts  &  Serg.  369.  These  cases  would  seem  to  justify 
the  doctrine  of  joint  liability. 

148.    OBSTRUCTING   STREET. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  before  and  at  the  time  of  the  committing  of  the  injury  here- 
inafter mentioned,  there  was,  and  from  hence  hitherto  has  been,  a 
certain  public  highway  (or,  street,  if  in  a  town  or  city,  called 
street,)  for  the  free  passage  of  all  persons  on  foot  and  with 
their  teams,  horses,  wagons  and  carriages,  at  all  times ;  and  yet 
the  said  defendant,  well  knowing  the  premises,  heretofore,  on  the 
day  of  ,  a.  d.  18     ,  (exact  time  not  material,  so  before  the 

accident.)  wrongfully  caused  to  be  put  and  placed  divers  large 
quantities  of  dirt,  rubbish,  stones,  and  other  materials,  (as  the  fact 
may  be:  the  obstruction  should  be  correctly  stated,)  in  the  said  public 
highway,  (or,  street,)  whereby  the  plaintiff,  lawfully  passing  in  and 
along  said  highway,  (or,  street,)  in  a  certain  carriage,  drawn  by 
horses,  was  then  and  there,  by  reason  of  said  rubbish  and  material, 
SO' wrongfully  placed  in  said  highway,  (or,  street,)  with  great  force 
and  violence  overturned,  without  the  fault  or  negligence  of  the 
plaintiff;  and  his  said  wagon  was  broken  and  greatty  injured,  as 
well  as  the  leg  of  the  plaintiff,  (state  any  special  damage,  if  there 
was  any;  if  none,  the  whole  averment  should  be  left  out,)  whereby  the 
said  plaintiff  was  put  to  great  expense  in  curing  his  said  leg,  as 
well  as  in  repairing  his  said  wagon,  to  wit,  to  the  sum  of  $  , 
and  was  unable  to  attend  to  his  usual  business  for  the  space  of 
months  ;  to  the  damage  of  the  plaintiff  8    ,    . 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  8         ,  his  said  damages  so  as  aforesaid  sustained. 


FORMS   OF   PETITIONS.  479 


149.    FOR   KEEPING   A    IIOLE    OPEN,  THAT   PLAINTIFF    FELL    INTO    IT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  before  and  at  the  time  of  the  suffering 
of  the  injury,  as  hereinafter  stated,  was  the  possessor  and  occupier 
of  a  certain  storehouse,  (or  shop,  dwelling-house,  as  the  case  way 
be,)  situate  on  and  adjoining  to  the         side  of  street,  between 

street  and  street,  in  the  city  (or,  town)  of  ,  in 

the  county  of  ,  which  said  street  was  then  a  public  highway, 

open  and  free  to  all  persons,  to  pass  and  repass  at  their  will  and  at 
all  times;  and  that  before  and  at  the  time  of  the  injury  aforesaid, 
there  was  a  certain  hole  opening  into  the  cellar  or  vault  under  and 
belonging  to  the  said  premises  of  the  said  defendant ;  yet  the  said 
■  defendant,  well  knowing  the  premises,  did,  on  the         day  of  , 

A.  d.  18  ,  wrongfully  permit  said  hole  to  be  and  continue  open,  to 
the  great  danger  of  persons  passing  along  said  street;  that  the 
said  plaintiff,  without  his  fault  or  negligence,  in  passing  along  said 
street,  on   the         day  of  ,  A.  d.  18     ,  unavoidably  fell  into 

the  said  hole,  and  thereby  the  left  leg  of  the  said  plaintiff,  (or 
other  injury,  as  the  fact  may  be,)  was  then  and  there  fractured  and 
broken  ;  and  he,  the  said  plaintiff,  became  and  was  lame  and 
diseased,  and  so  remained  for  the  space  of  months,  (and  still 
continues  lame,  where  such  lameness  is  permanent,')  and  was  pre- 
vented from  attending  to  his  necessary  business,  and'put  to  great 
expense,  to  wit,  to  the  sum  of  S  ,  in  and  about  trying  to  get 
healed  and  cured  of  his  said  injury;  to  the  damage  of  the  said 
plaintiff,  6 

Wherefore  he  prays  judgment  against  the  said  defendant,  for  the 
said  sum  of  S         ,  his  damages  so  as  aforesaid  sustained. 

No  action  will  lie  for  a  public  nuisance,  unless  plaintiff  has  sus- 
tained some  special  damage;  then  be  can  sustain  an  action  against 
the  party  bound  to  repair  the  road,  or  the  person  who  placed  the 
obstruction,  or  left  open  the  hole,  by  reason  of  which  he  was  in- 
jured. Comyn's  Dig.,  Action  on  Case  for  Nuisance,  0.  9  Coke,  112, 
b.  113;  2  Term,  667  ;  11  East,  61  ;  12  lb.  432;  1  M.  &  S.  101 ;  2 
Bing.  156,  263;  Stetson  v.  Faxon,  1!)  Pick.  117;  Pittsburg  r.  Scott, 
1  Penn.  St.  309;  Thayer  v.  Boston,  1!)  Pick.  511;  Myers  v.  Mal- 
colm, 6  Sill,  292.  To  keep  a  large  quantity  of  gunpowder  near 
where  persons  dwell  is  a  nuisance,  and  one  injure. 1  by  its  explosion 
can  frecover  damages.  Il>. ;  Borden  v.  Crocher,  in  Pick.::-:  Lan- 
sing r.  Smith,  I  Wend.  9;  Earrison  v.  Sterrell,  4  liar.  &  McHen. 


4S0  FORMS   OF   PETITIONS. 


540;    Story   v.   Hammond,   4    Ohio,   376;    Shaw    v.   Cummisky, 
7  Pick,  76. 

In  case  of  obstruction  to  highway  and  streets,  the  plaintiff  can 
not  recover,  if  he  did  not  use  ordinary  care  to  avoid  the  injury. 
Smith  v.  Smith,  2  Pick.  G21 ;  Irwin  v.  Spring,  G  Gill,  200. 

The  person  whose  duty  it  is  to  remove  the  nuisance,  or  keep  a 
hole  protected,  is  alone  liable.  Where  A  hired  B  to  do  a  job  of 
work  for  him,  and  B  left  it  so  that  one  fell  in  and  was  injured,  it 
was  held  that  A  was  not  liable.  Blake  v.  Ferris,  1  Selden,  48. 
The  party  doing  the  work  and  his  servants  are  liable.  lb.; 
Lougher  v.  Painter,  5  Barn.  &  Cress.  5G0  ;  Milligan  v.  Wedge,  12 
Aclol.  &  Ellis,  737.  So  where  A  has  a  carriage,  and  hires  horses 
and  a  driver  of  B,  B  is  alone  liable  for  an  injury  to  another  result- 
ing from  the  carelessness  of  the  driver.  He  is  not  the -servant  of' 
the  owner  of  the  carriage,  but  of  the  owner  of  the  horses.  Quar- 
man  v.  Burnett  et  ah,  6  M.  &  W.  497  ;  Bapson  v.  Cubit,  9  lb.  709 ; 
Hobbit  v.  The  N.  W.  Bailway  Co.,  4  Welsb.,  Hurlst.  &  Gordon, 
254 ;  Allen  v.  Haywood,  7  Adol.  &  Ellis,  N.  S.  960.  The  city  of 
New  York  is  liable  for  injuries  arising  from  neglect  of  those  em- 
ployed by  its  officers.  Lloyd  v.  The  Mayor,  etc.,  of  New  York, 
1  Selden,  369. 

150.    NEGLIGENCE   IN   LEAVING  A  DITCH   SO   THAT   PLAINTIFF  FELL  IN. 

The  said  A  B,  and  E  his  wife,  plaintiffs,  complain  of  the  said 
C  D,  defendant,  for  that  the  said  defendant  was,  on  the        day  of 

,  a.  d.  18     ,  at  ,  possessed  of  certain  real  estate,  situate 

street,  in  said  city  of  ,  and  did,  by  his  agents  and 

servants,  dig  and  open  a  certain  ditch  or  trench  on  said  premises, 
and  into  the  sidewalk  of  said  street,  and  did  then  carelessly  per- 
mit the  said  ditch  or  trench  to  remain  open  and  uncovered, 
and  without  fixing  any  light  near  the  same  ;  and  that  the  said 

,  wdfe  of  the  said  A  B,  plaintiff,  did,  in  consequence  of  the 
negligence  of  the  said  defendant  and  his  said  servants,  in  passing 
along  said  street,  accidentally  fall  into  the  said  ditch  or  trench, 
and  was  thereby  greatly  injured,  bruised,  and  hurt;  to  the  damage 
of  the  said  plaintiffs  $ 

The  said  plaintiffs  therefore  pray  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  their  damages  so  as  aforesaid 
sustained. 

Vide  9  Pr.  543. 


FORMS   OF   PETITIONS.  481 


151.      FOR      NEGLIGENTLY     MINING     UNDER     PLAINTIFF'S     BUILDINGS, 
WHEREBY   THEY   WERE   INJURED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  before  and  at  the  time  of  committing  of  the  grievances 
by  the  said  defendant,  as  hereinafter  mentioned,  to  wit,  on  the 
day  of  ,  a.  d.  18     ,  the  said  plaintiff  was  seized  in  fee  of  the 

following  lands  and  tenements,  situate  in  the  said  county  of  , 

with  certain  houses,  cottages,  and  other  buildings  thereon  stand- 
ing; and  that  the  said  premises  were  contiguous  to  certain  other 
lands,  and  of  right  ought  to  have  the  support  of  the  said  contigu- 
ous lands,  and  by  the  strata  under  the  same,  and  also  by  the  strata 
of  minerals  under  the  land  of  the  said  plaintiff;  of  which  last- 
mentioned  strata  of  minerals  the  said  plaintiff  was  not  seized,  nor 
did  the  same  belong  to  him  ;  and  the  said  plaintiff  fui'ther  saith 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     ,  afore- 

said, wrongfully  and  negligently,  and  without  leaving  proper  or 
sufficient  supports  in  that  behalf,  and  contrary  to  right  and  cus- 
tom in  that  respect,  worked  certain  coal  and  other  mines  under 
the  said  land,  houses,  cottages  and  other  buildings  of  the  said 
plaintiff,  and  under  the  land  so  contiguous  to  the  same  as  aforesaid, 
and  dug  for,  got,  and  removed  the  coals,  minerals,  earth,  and  soil, 
of  and  in  the  said  mines,  so  that  by  reason  thereof  the  soil  and 
surface  of  the  said  land  of  the  said  plaintiff  sank  and  cracked,  and 
that  his  said  houses,  cottages,  and  other  buildings  were  injured, 
and  the  said  land  impaired  in  value,  and  other  wrongs  done;  to 
the  damage  of  the  said  plaintiff  $ 

The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

AB, 

By  ,  his  Attorney. 

This  petition  is  copied  from  the  declaration  in  the  case  of  Nick- 
lin  v.  Williams,  26  Eng.  L.  &  Eq.  549,  and  it  was  there  held  good. 
The  right  of  action  in  such  a  case  accrues,  when  the  support  is 
removed,  oven  if  at  that  time  no  actual  injury  has  been  sustained. 
The  injury  to  the  right  is  enough  to  maintain  the  action. 
VOL.  i — 31 


4S2  FORMS   OF   PETITIONS. 


152.     FOR     NEGLIGENCE    IN    KEEPING   A   SEWER,    WHEREBY   PLAINTIFF 

WAS   INJURED. 

And  the  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defend- 
ant, for  that  before  and  at  the  time  of  the  committing  of  the  griev- 
ances hereinafter  mentioned,  to  wit,  on  the         day  of  ,  a.  d. 
18     ,  the  said  plaintiff  was  possessed  of  a  certain  house  and  shop, 
with  a  certain  cellar  under  the  same  and  thereto  belonging,  in 
which  said  house,  shop,  and  cellar  the  said  plaintiff  then  carried 
on  his  trade  and  business  of  a  grocer;  and  that  the  defendant  had, 
for  his  own  accommodation  and  convenience,  before  that  time 
made  and  constructed,  and  at  the  time  when  the  said  grievances 
hereinafter  mentioned  were  committed,  kept,  and  continued,  so 
made  and  constructed  a  certain  sewer  or  water-course,  in  and  under 
a  certain  street  or  highway  near  to  the  house,  shop,  and  cellar  of 
the  said  plaintiff,  and  which  said  sewer  or  water-course  was  under 
the  management  and   control  of  the  said  defendant;    and   into 
which  sewer  or  water-course  he,  the  said  defendant,  from  time  to 
time  caused  and  permitted  large  quantities  of  water  to  flow,  which 
said  water  then  flowed  and  passed  in  and  along  the  said  sewer  or 
water-course,  and  near  to  the  said  cellar  of  the  said  plaintiff,  of 
all  which  the  said  defendant,  before  and  at  the  time  of  the  com- 
mitting of  the  said  grievances  hereinafter  mentioned,  had  notice; 
yet  the  said  defendant,  not  regarding  his  duty  in  that  behalf,  so 
negligently,  insufficiently,  and  improperly  made  and  constructed 
the  said  sewer  or  water-course,  and  at  the  time  of  the  committing 
of  the    said  grievances,  kept  and  continued  the  same  so  negli- 
gently, insufficiently,  and  improperly  made  and  constructed,  and  in 
such  an  insufficient  and  improper  state,  and  did  also,  at  the  said 
time,  so  negligently  and  improperly  manage  the  said  sewer  and 
water-course,  and  permit  such  large  and  unreasonable  quantities 
of  water  to  flow  into  the  same,  that  on  the         day  of  ,  a.  d. 
18     ,  divers  large  quantities  of  water  penetrated  and  burst  through 
and  flowed  out  of  and  from  the  said  sewer  and  water-course  Of  the 
said  defendant  into  the  said  cellar  of  the  said  plaintiff,  and  thus 
greatly  damaged  and  destroyed  divers  large  quantities  of  grocer- 
ies, and  other  goods  of  the  said  plaintiff,  then  lawfully  being  in 
the  said  cellar,  in  the  way  of  plaintiff's  said  trade  and  business;  to 
the  damage  of  the  said  plaintiff  $ 

The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 


FORMS   OF   PETITIONS.  483 


This  is  copied  from  the  declaration  in  the  case  of  Alston  v. 
Grant,  24  Eng.  L.  &  Ecp  122,  where  it  was  held  that  the  landlord 
was  responsible  to  his  tenant,  if  he  had  a  sewer  so  improperly  con- 
structed and  kept  that  it  burst,  and  water  flowed  into  the  premises 
of  the  tenant  to  his  injury.  The  court  held  that  if  the  sewer  was 
not  constructed  with  proper  care  and  skill,  considering  the  works 
which  were  near  it,  and  the  flow  of  water  to  come  down,  and  the 
various  drains  which  entered  into  it,  the  plaintiff  was  entitled  to 
compensation ;  though  it  was  no  nuisance  so  long  as  all  the  prop- 
erty remained  in  the  possession  of  the  defendant.  When  he  let 
the  house  to  the  plaintiff  a  duty  arose  on  the  part  of  the  defend- 
ant, which  required  him  to  take  care  that  that  which  was  before 
rightful  should  not  be  so  continued  as  to  become  wrongful ;  that 
would  be  in  derogation  of  his  own  demise  of  part  of  the  property 
to  the  plaintiff.  The  admission  that  the  defendant  maintained  the 
sewer  in  a  defective  state,  admits  a  wrong  by  which  his  neighbor 
was  injured.  Tenant  v.  Goldwin,  2  Ld.  Eaym.  1089;  Vaughn  v. 
Menlove,  3  Bing.  N.  C.  468 ;  Cooper  v.  Barber,  3  Taunt.  99 ;  Arden 
v.  Pullen,  10  M.  &  W.  321. 

153.    FLOWING   WATER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  before  and  at  the  time  of  the  committing  of 
the  injuries  hereinafter  mentioned,  was  possessed  of  a  certain  grist- 
mill, (or,  flouring-mill,  or,  saw-mill,  or  both,  as  the  case  may  6e.) 
situate  on  creek,  in  the  said  county  of  ,  and  above  the 

premises  of  the  said  defendant  hereinafter  mentioned,  and  had  the 
right  to  have  the  water  of  said  creek  flow  from  his  said  mill,  and 
from  the  wheels  of  the  same,  in  the  natural  channel  of  said  creek, 
and  without  any  obstruction  whatever ;  yet  the  said  defendant 
afterward,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  erected  a  dam 

across  the  bed  of  said  creek  to  a  great  height,  and  ever  since  hath 
kepi  the  same  up,  and  obstructed  and  stopped  during  all  that  time 
the  Datura!  flow  of  the  water  of  said  creek,  and  raised  the  water 
in  the  bed  of  Baid  creek,  and  back  upon  the  mill  and  premises  of 
the  said  plaintiff,  and  upon  the  wheels  of  the  said  plaintiff's  mill, 
to  wit.  to  the  heighl  of  feet,  thereby  impeding  and  checking 

the  natural  How  of  said  water  therefrom,  and  the  movement  and 
motion  of  said  whoels,  and  greatly  diminishing  the  value  of  said 
mill  ;  to  tli"  damage  of  the  said  plaintiff  8 

Wherefore  I  be  said  plaintiff  prays  judgment  againsi  the  said  de- 
fendant for  the  said  sum  of  %  ,  his  said  damages  so  as  aforesaid 
sustained. 


484  FORMS   OP   PETITIONS. 


154.    FOR   CONTINUANCE   OF   SAME. 

(.Copy  the  above  to  whatever:)  yet  the  said  defendant  hath  kept 
up  a  certain  dam,  before  that  time  erected  across  the  bed  and  chan- 
nel of  said  creek,  and  raised  and  backed  up  the  water  in  the  chan- 
nel of  said  creek  to  a  great  height,  to  wit,  the  height  of  ,  from 
the         day.  of  ,  a.  d.  18     ,  until  the  commencement  of  this 

su?t,  and  during  all  that  time  hath  by  his  said  dam  raised  the 
water  in  said  creek,  on  the  mill  of  the  said  plaintiff,  and  on  the 
wheels  of  the  said  mill,  thereby  greatly  impeding  the  flow  of  the 
water  from  the  mill  and  wheels  of  the  said  plaintiff,  and  checking 
the  motion  of  said  wheels  and  mill,  and  diminishing  the  power  and 
usefulness  thereof;  to  the  damage  of  the  said  plaintiff  $ 

"Wherefore  he  prays  judgment,  etc. 

155.    FLOWING   LAND   AND   FORD. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  before  and  at  the  time  of  the  commitment 
of  the  wrongs  and  injuries  hereinafter  stated,  was  possessed  of  cer- 
tain lands,  situate  and  being  in  ,  (here  describe  them,')  and 
through  and  over  which  a  certain  creek  or  stream  known  as  , 
had  and  of  right  ought  to  run  in  its  natural  channel  unobstructed 
by  any  person  or  thing  whatever;  and  the  said  plaintiff  further 
saith  that  he  had  a  certain  ford  over  and  across  the  said  stream 
upon  his  said  premises  aforesaid,  by  which  he  was  enabled  to  pass 
and  repass  said  stream  to  and  from  the  said  premises,  situate  on 
either  side  of  said  creek ;  and  yet  the  said  defendant,  well  knowing 
the  premises,  did,  on  the  day  of  ,  A.  D.  18  ,  erect  and 
put  up  a  dam  across  said  stream,  below  the  premises  of  the  said 
plaintiff,  and  hitherto,  and  ever  since,  has  kept  up  the  said  dam  to 
the  height  of  feet,  and  thereby  has  raised  the  water  in  the 
channel  of  said  creek,  on  the  premises  of  the  said  plaintiff,  to  the 
height  of  feet,  and  in  and  upon  the  said  ford  to  the  height  of 
feet,  therehy  rendering  it  difficult  and  unsafe  for  the  plaintiff 
to  pass  the  same,  as  of  right  he  should ;  and  has  raised  and  flowed 
the  water  of  said  creek  back,  upon  and  over  the  said  land  of  the 
said  plaintiff,  to  wit,  over  acres  of  meadow,  acres  of 
plow-land,  and  acres  of  woodland,  thereby  greatly  injuring 
and  impairing  the  use  and  value  of  the  same;  to  the  damage  of  the 
said  plaintiff  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 


FORMS    OF   PETITIONS.  485 


15G.    FOR   DIVERTING   WATER    FROM    A   MILL. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  before  and  at  the  time  of  the  committing 
of  the  grievances  hereinafter  stated,  was  possessed  of  a  certain 
water-mill,  called  a  corn  or  grist-mill,  (or,  saw -mill,  or  both,  as  the 
case  may  be.)  with  the  appurtenances,  situate  on  creek,  (or, 

river,  or,  brook,)   at  ,  in  the   county  of 

and  that  the  said  plaintiff  ought  of  right  to  have  all  the  water  of 
said  creek,  (or,  river,  or,  brook,)  running  in  its  natural  channel  to 
said  mill  without  its  being  unreasonably  retarded  or  in  anyway 
obstructed  and  diverted  therefrom;  yet  the  said  defendant,  not 
ignorant  of  the  premises,  did,  on  the         day  of  ,  A.  d.  18     , 

dig  up  and  remove  the  bank  of  said  stream,  and  thereby  divert  a 
great  part  of  the  water  thereof,  so  naturally  running  in  said  stream, 
from  the  bed  of  said  creek,  and  from  the  said  mill  of  the  said  plaintiff, 
and  hath  from  thence  hitherto,  and  up  to  the  commencement  of 
tliis  suit,  kept  up  and  continued  the  diversion  of  said  water  from 
the  bed  of  said  creek,  and  from  the  said  mill  of  the  said  plaintiff, 
so  that  the  said  mill,  which  before  said  diversion  of  the  water 
of  said  creek,  was  able  and  used  to  grind,  (or,  saw,  etc.,)  fifty 
bushels  of  corn  in  every  twenty-four  hours,  now.  and  during  the 
time  aforesaid,  by  reason  of  the  diversion  aforesaid  of  the  water 
of  said  stream,  is  and  was  able  to  grind,  (or,  saw,  etc.,)  only 
bushels  of  corn  in  every  twenty-four  hours;  by  means  whereof 
the  said  plaintiff  hath  been  deprived  during  all  that  time  of  the 
usual  profits  of  Ids  said  mill,  and  still  continues  deprived  thereof; 
to  the  damage  of  the  said  plaintiff  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained. 

An  action  will  also  lie  for  diversion  of  the  water  of  a  stream, 
when  needed  for  agricultural  or  any  other  purpose  by  the  riparian 
proprietor.  He  is  entitled  to  have  the  Btream  run  as  it  naturally 
would,  subject  to  (he  right  of  those  above  him  to  use  the  water  for 
mills,  irrigation,  watering  stock,  etc.  The  right  of  irrigation  is 
limited  by  the  fad  whether  the  quantity  of  water  in  the  stream  is 

materially  lessened.  The  use  mn-l  be  Such  as  returns  the  water  to 
the  channel,  and  does  not  materially  lessen  its  volume;   so  (hat   the. 

proprietor  below  may  have  enough  for  his  purposes.  The  law  on 
this  subjecl  will  he  found  fully  stated  in  A.ngell  on  Water  Courses, 
L22.     Bee  also  the  following  cases:  Strutt  v.  Bovington,  5  Esp.  56; 


486  FORMS    OF   PETITIONS. 


Greenslade  r.  Holliday,  6  Bing.  379;  Gale  &  Wheat,  on  Ease- 
ments, 284;  Evans  v.  Merryweather,  3  Scam.  496;  Weston  v. 
Alden,  7  Mass.  136;  Ingraham  v.  Hutchinson,  2  Conn.  584;  Colburn 
r.  Richards,  13  Mass.  420;  Anthony  v.  Laphara,  5  Pick.  175; 
Blanchard  v.  Baker,  8  Greenlf.  253;  Arnold  v.  Font,  12  Wend.  3S0; 
Wadsworth  v.  Tillotson,  15  Conn.  366. 

In  Cooper  v.  Hall,  5  Ohio,  321,  it  was  held  that  an  action  would 
not  lie  for  flowing  or  deepening  water  in  the  channel  of  the  stream 
on  one's  premises,  unless  some  actual  injury  be  sustained.  This 
case  is  against  all  the  authorities,  and  wrong  in  principle,  and  has 
been  disregarded  on  the-  circuit  by  the  late  Supreme  Court.  In 
Ewing  v.  Wolf,  Athens  S.  C,  the  court  held  that  the  deepening  of 
water  in  the  channel  of  a  stream,  so  as  to  render  the  fording  more 
difficult,  was  actionable,  even  though  the  plaintiff's  land  was  wild 
land,  and  he  had  never  used  the  ford.  There  is  an  injury  to  the 
right,  and  if  the  plaintiff  can  not  sustain  an  action  until  he  has  sus- 
tained actual  damage,  the  defendant  might,  by  lapse  of  time,  acquire 
an  absolute  right  to  flow ;  unless  the  court  should  hold  that  no 
adverse  use  could  be  implied  until  injury  sustained.  Still  the  cases 
are  that  injury  to  the  naked  right  to  have  the  water  flow  as  it 
would  naturally  do,  is  sufficient  to  maintain  an  action.  So  held  in 
the  following  cases :  16  Pick.  241 ;  12  Maine,  407  ;  2  Story,  661 ;  9 
N.  H.  88 ;  17  Pick.  23 ;  17  Conn.  288 ;  4  Barr,  (Pa.)  486 ;  25  Maine, 
209;  3  Greenl.  116;  1  Rawle,  21 ;  Angell  on  Water-Courses,  142  ; 
Fortman  v.  Bottier,  8  Ohio  St.  548. 

157.    FOR    MALICIOUS   PROSECUTION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant  heretofore,  to  wit,  on  the         day  of  , 

A.  D.  18  ,  not  then  having  any  reasonable  or  probable  cause 
therefor  against  said  plaintiff,  but  unjustly  contriving  and  intend- 
ing to  injure  the  said  plaintiff  and  break  up  his  business,  he,  the 
said  plaintiff,  then  being  engaged  in  the  business  of  a  merchant,  did 
falsely  and  maliciously  cause  and  procure  to  be  sued  out  of  the 
Court  of  Common  Pleas,  within  and  for  the  county  of  ,  a 

certain  writ  of  attachment  in  a  certain  action  then  and  there 
pending,  wherein  C  D  was  plaintiff,  and  the  said  A  B  defendant, 
directed  to  the  sheriff  of  said  county,  commanding  said  sheriff, 
(here  state  substance  of  writ.)  and  delivered  the  same  to  the  said 
sheriff,  and  caused  and  required  the  said  sheriff  to  levy  said  writ  of 
attachment  on  the  store  of  goods,  wares,  and  merchandise  of  the 
said  plaintiff;  and  that  said  sheriff  did  so  levy  said  writ  upon  said 


FORMS   OF   PETITIONS.  487 

goods,  wares,  and '  merchandise  of  the  said  plaintiff,  and  took  the 
same  into  his  possession,  and  the  said  defendant  afterward  applied  to 
the  said  Court  of  Common  Pleas,  (or,  to  E  F,  one  of  the  judges  of  said 
court,  if  in  vacation.)  and  ohtained  an  order  from  said  court,  (or, 
judge,)  for  the  sale  of  said  goods  and  merchandise,  and  caused 
said  sheriff  to  sell  the  same  at  a  great  sacrifice ;  and  the  said  plaint- 
iff further  saith  that  the  said  action  of  the  said  defendant  afterward 
came  on  for  trial  at  the  term  of  said  court,  A.  d.  18     ,  and 

was  tried,  and  a  verdict  and  judgment  rendered  in  favor  of  the 
said  plaintiff;  to  the  damage  of  the  said  plaintiffs 

Wherefore  he  prays  judgment  against  the  said  defendant  for 
the  said  sum  of  $         ,  his  said  damages  so  as  aforesaid  sustained. 

The  averment  of  no  indehtedness  may  be  omitted,  and  a  suit 
maintained  for  maliciously  suing  out  an  attachment.  Tomlinson  & 
Sperry  r.  Warner,  9  Ohio,  103.  The  averment  that  the  suit  was 
terminated  must  also  be  omitted,  where  such  was  not  the  case.  At 
common  law  there  must  have  been  an  arrest,  in  order  to  justify  an 
action  for  malicious  prosecution.  (  lb. 

158.    FOR   AN   ARREST   ON   STATE   WARRANT. 

The  said  A.  B.,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  he,  the  said  plaintiff,  hath  hitherto,  and  until  the  commit- 
ting of  the  injury  hereinafter  stated,  sustained  a  good  character, 
and  has  never  been  suspected  of  the  crime  of  ,  or  any  other 

crime  ;  vel  the  --aid  defendant,  well  knowing  the  premises,  but  ma- 
liciously contriving  and  intending  to  injure  the  said  plaintiff  in  his 
good  name,  to  cause  him  to  be  imprisoned,  and  put  him  to  great 
trouble  and  expense,  did,  on  the  day  of  ,  A.  D.  18      ,  go 

before  one  ,  he,  the  said  ,  being  then  a  justice  of  the 

peace  for  the  said  county  of  ,  and  then  and  there,  before  the 

said  ,  justice  as  aforesaid,  falsely  and  maliciously,  and  with- 

out any  reasonable  or  probable  cause  whatsoever,  charged  the  said 
plaintiff  with,  (hen  set  oyi  ih%  crime  as  in  the  affidavit)  and  upon 
said  charge,  then  caused  the  said  justice  of  the  peace  to  make  and 
grant  a  wan-ant  in  due  form  of  law.  under  his  hand  and  seal,  for 
the  apprehending  and  taking  of  the  said  plaintiff,  and  bringing 
him  before  said  justice  of  the  peace,  or  some  other  justice  within 

said  COUnty  of  ,  to  he  .halt  with  according  to  law  for  the  said 

supposed  Dffcnse.  And  the  said  defendant,  kinder  and  by  virtue  of 
said  warrant,  afterward,  to  wit.  on  the  day  of  ,  A.  i>.  18     , 

Wrongfully  and  unjustly,  falsely  and  maliciously,  and  without    any 


488  FORMS   OF   FETITIONS. 


reasonable  or  probable  cause  therefor,  caused  and  procured  the 
said  plaintiff  to  be  arrested,  and  to  be  imprisoned,  and  kept  and 
detained  for  a  long  space  of  time,  to  wit,  for  the  space  of  hours 
next  following  ;   and  until  afterward,  to  wit,  on  the         day  of  , 

a.  d.  18  ,  he,  the  said  defendant,  falsely  and  maliciously,  and  with- 
oui  any  reasonable  or  probable  cause  whatsoever,  caused  and  pro- 
cured the  said  plaintiff  to  be  carried  in  custody,  before  the  said 
,  justice  of  the  peaee  as  aforesaid  ;  (if  the  plaintiff  was  com- 
mitted before  examination  was  completed,  then  insert :  and  to  be  com- 
mitted by  the  said  justice,  for  further  examination,  to  the  jail  of 
Baid  county,  or  to  the  custody  and  safe-keeping  of  ,  a  eon- 

stable  of  said  county  of  ,  and  to  be  kept  in  said  jail,  or  in  the 

custody  of  said  for  the  space  of         days  then  next  following, 

um  i  I  he,  the  said  defendant,  afterward,  to  wit,  on  the       day  of  , 

A.  d.  18  ,  caused  said  defendant  to  be  again  brought  in  custody 
before  the  said  ,  justice  as  aforesaid,)  to  be  examined  before 

the  said  justice  of  the  peace,  touching  the  said  supposed  crime; 
which  said  justice,  having  heard  and  considered,  all  and  singular, 
the  evidence  adduced  by  said  defendant  against  the  said  plaintiff, 
concerning  the  said  crime  then  and  there  adjudged,  and  determin- 
ing that  the  said  plaintiff  was  not  guilty  of  the  said  supposed 
crime,  then  and  there  discharged  the  said  plaintiff  out  of  custody, 
fully  acquitted  and  discharged  of  said  crime  ;  and  the  said  defend- 
ant hath  no  further  prosecuted  his  said  complaint,  but  wholly  aban- 
doned the  same,  so  that  said  complaint  and  prosecution  is  wholly 
ended  and  determined ;  by  means  of  which  the  said  plaintiff  hath 
been  greatly  injured  in.  his  good  name,  and  been  put  to  great  ex- 
pense, to  wit,  to  the  sum  of  %  ,  in  and  about  procuring  to  be 
discharged  from  his  said  imprisonment,  and  hath  been  greatly  hin- 
dered in  his  lawful  business  for  the  space  of  days ;  to  the  damage 
of  the  said  plaintiff  $ 

"Wherefore  he  prays  judgment  against  the  said  defendant  for 
the  said  sum  of  $         ,  his  said  damages  so  as  aforesaid  sustained. 

159.    SAME,  WHERE  THE  PARTY  HAS    BEEN   BOUND    OVER   TO   PROBATE 

COURT. 

(In  lieu  of  the  words  from  which  said  justice,  to  the  averment  of 
damages,  insert  the  following :)  and  then  and  there  falsely  and  ma- 
liciously procured  the  said  justice  of  the  peace  to  require  the  said 
plaintiff  to  give  bail  in  the  sum  of  $  ,  for  his  appearance  before 
the  Probate  Court  at  its  term  next  thereafter,  to  be  held  to  answer 
unto  the  said  offense,  and  that  the  said  plaintiff  then  and  there 


FORMS    OF   PETITIONS.  489 


gave  bail  in  the  said  sum  of  8         ,  with  one  as  his  surety,  to 

the  acceptance  of  said  justice,  (or  in  case  bail  was  not  given.)  and 
tlmt  the  said  plaintiff,  being  unable  to  procure  hail  in  said  sum  for 
his  said  appearance,  was,  by  the  order  of  the  said  justice  of  the 
peace,  committed  to  the  jail  of  said  county,  there  to  remain  until 
discharged  by  due  course  of  law  ;  and  that  the  said  defendant 
falsely  and  maliciously,  and  without  reasonable  or  probable  cause, 
procured  the  said  plaintiff  to  be  imprisoned  in  the  jail  of  said 
county  for  the  space  of  days,  until  he,  the  said  defendant,  after- 
ward, on  the  day  of  ,  a.d.18  ,  falsely  and  maliciously,  and 
without  reasonable  or  probable  cause,  caused  and  procured  the  said 
plaintiff  to  be  brought  before  the  Probate  Court  of  said  county,  to 
answer  to  an  information  then  and  there  by  the  said  defendant 
procured  to  be  filed  against  the  said  plaintiff,  to  which  information 
the  said  plaintiff  then  and  there  plead  not  guilty;  and  the  said 
issue  BO  made  up  then  and  there  came  on  by  the  consent  of  this 
defendant,  to  be  heard  before  ,  the  judge  of  said  court,  and  a 
verdict  was,  by  said  court,  rendered  on  said  issue,  that  the  said 
plaintiff  was  not  guilty  of  the  offense  so  alleged  against  him,  and 
it  was  by  said  court  further  adjudged  that  the  said  plaintiff  go 
hence  therein',  and  be  wholly  discharged  therefrom,  and  the  said 
prosecution  became,  and  is  wholly  ended  and  determined.  (Then 
add  damages  and  conclusion  as  in  la.it  form.) 

1G0.    FOR    PROCURING    PLAINTIFF    TO    BE    INDICTED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  Baid  defendant,  contriving  and  maliciously  intending  to 
injure  the  said  plaintiff  in  his  good  name  and  credit,  and  to  bring 
him  into  public  scandal  and  disgrace,  and  to  cause  it  to  be  believed 
that  he  bad  been  guilty  of  the  crime  of  ,  to  wit,  on  the 

day  of  ,  a.  d.  18     ,  at  the  term  of  the  Court  of  Common 

Pleas,  within  and  to)-  the  comity  of  .  falsely  and  maliciously, 

and  without  probable  cause,  indicted,  and  caused  and  procured  the 
said  plaintiff  to  be  indicted,  by  the  grand  jury  of  said  county,  then 
and  there  duly  impaneled  and  sworn  by  said  court  to  inquire  of 
crimes  within  and  tor  t  lie  said  county  of  •   and  the  said  plaint- 

iff further  saith  that  tic  said  defendant  afterward, falsely  and  ma- 
liciously, and  without  reasonable  or  probable  cause,  prosecuted,  and 
caused  to  be  prosecuted,  the  said  indictment  against  the  said  plaintiff, 
until  afterward,  to  wit.  at  the  term  of  the  said  <  lourl  of  <  lorn- 

mon Pleas, begun  and  held  on  the       day  of  ,  a.d.18     ,-atthe 

court-house  in  ,  in  said  county  of  .,  the  said  plaintiff 


400  FORMS   OF    PETITIONS. 


was  in  due  manner  and  by  due  course  of  law  acquitted  of  the  said 
premises  in  the  said  indictment  charged  upon  him,  by  a  jury  of  the 
said  county  of  ;  whereupon  it  was  then  and  there  adjudged 

by  the  said  court  that  the  said  plaintiff  go  hence  thereof  without 
day,  and  the  said  plaintiff  was  then  and  there  discharged  of  and 
from  the  premises  in  said  indictment  specified,  as  by  the  record  and 
proceedings  thereof  remaining  in  said  court  appears.  By  means 
whereof,  etc.  (state  the  damages  and  conclusion  as  in  previous  form.) 

For  other  forms,  vide  2  Chit.  PI.  610  et  seq.  For  the  law,  see  1 
Saund.  228,  230,  notes;  9  East,  361  ;  5  Taunt.  187;  1  Term,  493; 
Anderson  v.  Buchanan,  Wright,  725 ;  Morris  v.  Scott,  21  Wend. 
281 ;  Williams  v.  Hunter,  3  Hawks,  545.  Want  of  probable  cause 
is  essential ;  if  probable  cause,  though  malicious,  defendant  is  not 
liable.  Payson  v.  Caswell,  9  Shepley,  212  ;  Wood  v.  Wier,  5  B. 
Mon.  544;  Leiding  v.  Kawson,  1  Seam.  272.  What  is  probable 
cause?  It  is  the  existence  of  such  facts  and  circumstances  as 
would  excite  in  a  reasonable  mind  a  belief  of  the  guilt  of  the  per- 
son charged.  Hall  v.  Hawkins,  5  Humph.  357  ;  Farris  v.  Starke,  3 
B.  Mon.  4;  3  Mo.  37;  9  Shepley,  212;  2  lb.  362;  11  lb.  566; 
4  Dana,  120. 

As  to  pleading :  8  N.  H.  157  ;  6  Watts  &  Serg.  336  ;  3  Hill,  (S.  C.,) 
195 ;  5  Blackf.  428,  390.     Prosecution  must  be  ended.     3  Mon.  208. 

161.    FOR   LIBEL. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  hath  always  sustained  a  good  character,  and 
been  reputed  and  accepted  in  the  community  to  be  a  person  of 
good  name,  fame,  and  credit,  and  never  suspected  of  having  been 
guilty  of  (here  set  forth  the  pith  of  the  libel,  whatever  it  may  be,  as 
of  the  crime  of  perjury,  or  larceny,  or  forgery,  or  fraud,  or  bribery,) 
yet  the  said  defendant,  will  knowing  the  premises,  and  maliciously 
intending  to  injure  the  said  plaintiff,  and  to  bring  him  into  public 
scandal  and  disgrace  among  his  neighbors,  did,  on  the  day  of 
.  a.  d.  18  ,  falsely,  wickedly,  and  maliciously  publish,  and 
cause  to  be  published,  of  and  concerning  the  said  plaintiff,  a  certain 
false,  scandalous,  and  malicious  libel,  containing,  among  other 
things,  the  false,  malicious,  defamatory,  and  libelous  matter  follow- 
ing, of  and  concerning  the  plaintiff,  that  is  to  say  :  (here  set  out  the 
libel  in  its  words,  with  the  necessary  innuendoes  to  make  it  applicable  to 
the  plaintiff ';)  by  means  whereof  the  said  plaintiff  hath  been 
greatly  damaged  and  injured  in  his  good  name  and  reputation;  to 
the  damage  of  the  said  plaintiff  % 


FORMS   OF   PETITIONS.  491 


Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  6         ,  his  damages  so  as  aforesaid  sustained. 

162.    FOR   LIBEL   OF   ONE    IN    HIS   PROFESSION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  for  a  long  time  before  and  at  the  time  of 
the  committing  of  the  injuries  by  the  said  defendant  hereinafter 
mentioned,  had  been,  and  was,  and  still  is,  an  attorney  at  law  of 
the  several  courts  of  record  in  and  for  the  State  of  Ohio,  duly  ad- 
mitted as  such  to  practice  therein,  as  such  attorney,  and  had  prac- 
ticed, and  still  continues  to  practice,  as  such  attorney  at  law,  in  the 
several  courts  of  record  in  said  State  of  ,  and  had  always,  as 

such  attorney  at  law,  conducted  and  demeaned  himself  with  hon- 
est}' and  fidelity,  and  had  never  been  guilty,  or  suspected  to  have 
been  guilty,  of  any  misconduct  or  malpractice,  in  his  said  capacity 
and  profession  of  an  attorney  at  law  ;  yet  the  said  defendant,  well 
knowing  the  premises,  and  maliciously  intending  and  contriving  to 
injure  said  plaintiff,  in  his  said  capacity  and  profession  of  an  at- 
torney at  law,  as  aforesaid,  on  the  day  of  ,  a.  d.  18  ,  did 
publish,  and  cause  and  procure  to  be  published,  of  and  concerning 
the  said  plaintiff,  and  of  and  concerning  him,  in  his  said  capacity 
and  profession  of  an  attorney  at  law,  a  certain  false,  malicious, 
and  defamatory  libel,  containing,  among  other  things,  the  follow- 
ing false,  malicious,  and  libelous  matter,  of  and  concerning  the 
said  plaintiff,  and  of  and  concerning  him  in  his  capacity  and  pro- 
.11  of  an  attorney,  as  aforesaid,  that  is  to  say:  (here  set  out  the 
libel  with  the  proper  innuendoes. ,)  by  means  of  which  said  premises 
the  said  plaintiff  hath  been  and  is  greatly  injured  and  prejudiced 
in  his  reputation  aforesaid,  and  has  also  lost  and  been  deprived  of 
greal  gains  and  profits,  which  would  otherwise  have  arisen  and 
accrued  to  him.  in  his  said  profession  and  business;  to  the  damage 
of  the  said  plaintiff  8 

Wherefore  he  prays  judgment  against  (he  said  defendant  for  the 
said  sum  i  ,  his  damages  so  as  aforesaid  sustained. 

Chitty  says  there  is  no  necessity  for  averring  how  the  publica- 
tion was  made,  whether  by  letter,  newspaper,  or  otherwise.  For 
other  forms,  vide  2  Chitty  PI.  624  to  <;:;:;.  Where  words  are  not 
libelous  without  extraneous  facts,  those  facts  must  he  stated  in  the 
introduction  or  inducement ;  as  an  innuendo  can  not  extend,  but 
only  apply,  the  words.  Nichols  v.  Packard,  16  Vt.  83  ;  Brown  v. 
Brown,  2  Sbepley,  317  ;  Harris  v.  Burley,  8  X.  II.  256;  Dinville  v. 
Earlywine,  I  Blackf.  169 ;  Tappan  v.  Wilson,  7  Ohio,  (pt.  L,)  190. 


492  FORMS   OP   PETITIONS. 


As  to  what  is  a  libel,  see  Watson  v.  Trask,  6  Ohio,  571;  Gage  v. 
Bobinson,  12  lb.  250;  Fisher  v.  Patterson,  14  lb.  418. 

1G3.    VERBAL    SLANDER,    FOR   CALLING   ONE    A    THIEF. 

The  said  A  J?,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  before  and  at  the  time  of  the  committing 
by  the  said  defendant  of  the  grievances  hereinafter  mentioned, 
sustained  a  good  name  and  character  among  his  neighbors  and 
acquaintances,  for  moral  worth  and  integrity,  and  was  never  sus- 
pected of  the  crime  of  larceny ;  yet  the  said  defendant,  well  know- 
ing the  premises,  and  maliciously  intending  to  injure  the  good 
name  and  character  of  the  said  plaintiff,  and  to  cause  it  to  be  be- 
lieved that  he  had  been  guilty  of  the  crime  of  larceny,  on  the 
day  of  ,  A.  D.  18     ,  in  a  certain  discourse,  which  he  then  had, 

of  and  concerning  the  plaintiff,  and  in  the  presence  and  hearing 
of  divers  good  people,  falsely  and  maliciously  spoke  and  published, 
of  and  concerning  the  said  plaintiff,  the  false,  scandalous,  and  ma- 
licious words  following,  that  is  to  say  :  "  he,"  meaning  the  plaintiff, 
'L  is  a  thief;"  "  he,"  meaning  the  plaintiff,  "  stole  a  horse  ;"  "you," 
meaning  the  plaintiff,  "are  a  thief;"  and  by  means  of  the  speaking 
of  said  defamatory  words,  the  said  plaintiff  hath  been  greatly  in- 
jured in  his  good  name  and  character;  to  the  damage  of  the  said 
plaintiff! 

Wherefore  he  prays  judgment  against  the  said  defendant  for 
the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained. 

1G4.    FOR   SLANDER,    ON    CHARGE   OF   PERJURY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  before  and  at  the  time  of  committing  the 
injuries  hereinafter  mentioned,  had  sustained  a  good  character,  and 
had  been  examined  as  a  witness  on  the  trial  of  an  action,  wherein 
the  said  defendant  was  plaintiff,  and  one  wras  defendant,  in 

the  Court  of  Common  Pleas,  within  and  for  the  county  of  , 

at  its  term,  a.  d.  18  ,  and  given  testimony  on  said  trial  in 
favor  of  said  ,  defendant  in  said  action,  and  the  said  plaintiff 

further  saith  that  the  said  defendant,  well  knowing  the  premises, 
and  maliciously  intending  to  injure  the  said  plaintiff  in  his  good 
name,  and  to  cause  it  to  be  believed  that  said  plaintiff  had  been 
guilty  of  perjury,  on  the  trial  of  the  aforesaid  action,  did,  on  the 
day  of  ,  a.  d.  18     ,  in  the  presence  and  hearing  of  divers 

persons,  falsely  and  maliciously  speak  and  publish  of  and  concern- 
ing the  said  plaintiff,  and  of  and  concerning  the  testimony  of  the 


FORMS   OF   PETITIONS.  493 


said  plaintiff,  given  by  him  on  the  trial  of  the  action  aforesaid,  the 
following  false,  malicious,  and  defamatory  words,  that  is  to  say: 
'•he,"  meaning  the  said  plaintiff,  "swore  a  lie;"  meaning  thereby 
that  said  plaintiff  on  said  trial  had  committed  willful  and  corrupt 
perjury  in  the  giving  of  his  testimony  aforesaid,  (set  out  anij  other 
icords,  and  conclude  as  in  the  last.) 

165.    FOR   CRIMINAL    CONVERSATION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  contriving  and  intending  to  injure  the  said 
plaintiff,  and  to  deprive  him  of  the  fellowship  of  E  F,  the  wife  of 
said  plaintiff,  and  to  alienate  her  affection  for  the  said  plaintiff,  did, 
on  the         day  of  ,  A.  d.  18     ,  and  on  divers  other  days  and 

times  between  that  day  and  the  commencement  of  this  action, 
wickedly  and  unjustly  debauch  and  carnally  know  the  said  E  F, 
then  and  there  still  being  the  wife  of  the  said  plaintiff,  whereby 
the  affection  of  the  said  E  F  for  the  said  plaintiff  was  then  and 
there  alienated,  and  the  said  plaintiff  hath  hitherto  lost  and  been 
deprived  of  the  society,  comfort,  aid,  and  assistance  of  his  said  wife 
in  his  domestic  affairs ;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff'  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  §  ,  his  damages  so  as  aforesaid 
sustained. 

166.  FOR  DEBAUCHING  A  DAUGHTER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  unjustly  intending  to  injure  the  said  plaint- 
iff, and  to  deprive  him  of  the  services  and  assistance  of  E  F,  the 
daughter  and  servant  of  the  said  plaintiff,  did.  on  the  day  of 
,  a.  i>.  18  ,  and  on  divers  other  days  between  that  day  and 
the  commencement  of  this  action,  debauch  and  carnally  know  the 
said  E  P,  then  and  there,  and  before  and  since,  the  daughter  and 
servant  of  the  said  plaintiff;  whereby  the  said  E  F  became  preg- 
nant and  s'nk  with  child,  and  so  remained  for  a  long  space  of  time, 
to  wit,  for  the  space  of  nine  months  thence  next  following;  at  the 
aspiration  whereof  the  said  F  F  was  delivered  of  the  child  with 
Which  she  was  pregnant,  as  aforesaid;  by  means  of  which  said 
pal  premises,  Bhe,  the  said  E  F.  for  a  long  space  of  time,  to  wit, 
one  year,  was  unable  to  do  the  needful  business  of  the  said  plaint- 
iff, he,  the  said  plaintiff,  BO  being  tlie  lather  and  master  of  the  said 
B  F  :  and  tin-  said  plaintiff  Lost  the  services  of  the  said  10  I'1  during 
all  that  time  ;  and  the  said  plaintiff  was  put  to  great  expense,  and 
did  pay  (nit  a  large  sum,  to  wit,  the  sum  of  §         ,  in  and  about  the 


49-4  FORMS    OF    PETITIONS. 


nursing  and  taking  care  of  the  said  E  F,  his  said  daughter  and 
servant,  and  in  and  about  the  delivery  of  the  said  child;  to  the 
damage  of  the  said  plaintiff  & 

Wherefore  the  said  plaintiff  prays  judgment  against  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

If  the  female  was  not  the  daughter  of  the  plaintiff,  leave  out  the 
word  ■  daughter,"  and  retain  only  that  of"  servant."  The  loss  of 
service  is  the  gist  of  the  action,  and  the  master  can  alone  sustain 
the  action.  If  the  daughter  is  not  living  with  her  father,  he  can 
not  sue  for  the  secluetion.  Briggs  v.  Evans,  5  Iredell,  1G  ;  Ilewit  v. 
Prime,  21  Wend.  79 ;  Martin  v.  Payne,  9  Johns.  387 ;  2  A.  K.  Marsh. 
128;  7  Wend.  193;  2  lb.  459. 

1G7.    FOR    ENTICING   AWAY   AN   APPRENTICE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  before  and  at  the  time  of  the  committing  of  the  injuries 
by  the  said  defendant  hereinafter  mentioned,  one  E  F  was,  and 
from  thence  hitherto  hath  been,  and  still  is,  the  servant  (or,  appren- 
tice,) of  the  said  plaintiff,  in  his  trade  or  business  of  a  ,  which 
the  said  plaintiff  then  exercised  and  carried,  and  still  does  carry  on ; 
yet  the  said  defendant,  well  knowing  the  premises,  and  wrongfully 
contriving  to  injure  the  said  plaintiff,  and  deprive  him  of  the  ser- 
vices and  benefit  of  his  said  servant  (or,  apprentice,)  did,  on  the 
day  of  ,  A.  D,  18  ,  wrongfully  entice,  persuade,  and  pro- 
cure the  said  E  F,  so  then  being  the  servant  (or,  apprentice,)  of 
the  said  plaintiff,  to  depart  from  and  out  of  the  service  of  the  said 
plaintiff,  by  means  of  which  enticing,  and  persuasion,  and  pro- 
curing, the  said  E  F  did  then  wrongfully,  and  without  the  license 
of  the  said  plaintiff,  and  against  his  will,  depart  from  and  out  of 
the  service  of  the  said  plaintiff,  and  hath  remained  absent  there- 
from from  thence  hitherto;  whereby  the  said  plaintiff,  during  all 
that  time,  has  lost  and  been  deprived  of  the  services  of  the  said 
E  F,  in  his  said  trade  and  business  of  ,  and  of  all  profits  and 
benefits  which  might  and  would  have  otherwise  accrued  to  him 
from  such  service ;  to  the  damage  of  said  plaintiff  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for 
the  said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 


FORMS   OF   PETITIONS.  493 


1GS.    FOR    HARBORING   AN   APPRENTICE 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  E  F,  heretofore,  to  wit,  on  the         day  of  ,  a.  d. 

18  ,  was  the  servant  (or,  apprentice,)  of  the  said  plaintiff,  and 
being  such  servant,  (or,  apprentice,)  did  then  unlawfully,  and  with- 
out the  license,  and  against  the  will  of  said  plaintiff,  depart  and 
go  away  from  and  out  of  the  service  of  the  said  plaintiff,  and 
went  and  came  to  the  said  defendant ;  that  the  said  plaintiff  after- 
ward, to  wit,  on  the  day  of  ,  A.  d.  18  ,  notified  and  in- 
formed the  said  defendant  of  the  premises,  and  requested  him,  the 
said  defendant,  not  to  keep  and  harbor  the  said  E  F,  so  being  the 
servant  (or,  apprentice,)  of  said  plaintiff;  yet  the  said  defendant, 
well  knowing  the '  premises,  and  contriving  to  injure  the  said 
plaintiff,  and  to  deprive  him  of  the  service  of  the  said  E  F,  did, 
on  the  said  day  of  ,  a.  r>.  18  ,  wrongfully  harbor  the  said 
E  F.  and  has  kept  him,  the  said  E  F,  in  his,  the  said  defendant's, 
employ  and  service  from  that  time  up  to  the  commencement  of  this 
action,  whereby  the  said  plaintiff  hath  lost,  during  all  that  time, 
all  profit  and  benefit  which  otherwise  he  might  and  would  have 
obtained  from  the  services  of  the  said  E  F;  to  the  damage  of  the 
said  plaintiff  8 

Wherefore  he  prays  judgment  against  the  said  C  D  for  the  said 
sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

For  the  law  on  this  subject,  see  Cowper,  5-1 ;  2  H.  Bl.  511 ;  2  Esp. 
734  ;  2  Saund.  169  ;  3  M.  &  S.  191 ;  7  Term,  310;  Peake  M".  P.  55; 
.">  East,  39;  Dubois  v.  Allen,  Anthon,  94;  Scidmore  v.  Smith,  13  G. 
Pc.  322;  Demyer  v.  Souzer,  G  Wend.  436;  Ferguson  v.  Tucker,  2 
liar.  &  Gill,  1^2  ;  Stewart  v.  Simpson,  1  Wend.  37G. 

The  master  is  entitled  to  Ins  apprentice's  wages,  when  hired  by 
another,  and  this  whether  the  person  hiring  knew  he  was  or  was 
noi  an  apprentice.  James  v.  Leroy,  G  Johns.  274;  Munseyv.  Good- 
win. 3  N.  II.  272;  Bowes  v.  Tibbits,  7  Greenl.  457;  Conant  v.  Ray- 
mond, 2  Aiken,  243.  Bui  in  the  ease  of  a  hired  servant,  he  is 
not  Liable  without  notice  of  his  being  the  servant  of  another.  G 
Johns.  -74. 

1G9.    FOB    CARELESS    DRIVING. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
tint  t  lie  said  defendant,  before  the  committing  of  the  injuries  here- 
inafter mentioned,  was  the  owner  and  proprietor  of  a  certain  stage- 
coach, by  him  used  for  the  carriage  of  passengers  at  and  for  hire 


406  FORMS  OP   PETITIONS. 

and  reward  ;  and  the  said  defendant,  being  such  owner  of  said 
coach,  the  said  plaintiff  did,  on  the         day  of  ,  A.  D.  18     ,  at 

the  special  instance  and  request  of  the  said  defendant,  become  and 
was  a  passenger  by  the  said  coach,  to  be  safely  carried  and  con- 
veyed thereby  on  a  certain  journey,  to  wit,  from  the  town  (or, 
city.)  of  ,  to  the  of  ,  for  certain  hire  and  reward 

to  the  said  defendant  in  that  behalf;  and  although  the  said  plaintiff 
was  then  and  there  received  by  the  said  defendant  as  such  passen- 
ger by  said  coach,  yet  the  said  defendant,  not  regarding  his  duty 
in  that  behalf,  so  carelessly,  negligently,  and  unskillfully  loaded, 
drove,  and  managed  said  coach,  that,  afterward,  and  whilst  said 
coach  was  proceeding  with  the  said  plaintiff,  as  such  passenger  on 
said  journey,  to  wit,  on  the         day  of  ,  A.  d.  18     ,  the  said 

coach  was,  by  and  through  the  carelessness  and  negligence  of  the 
said  defendant,  overturned  and  thrown  down,  with  the  said  plaint- 
iff therein,  as  aforesaid;  by  means  whereof  the  said  plaintiff  was 
greatly  injured,  and  one  of  the  legs  of  said  plaintiff  was  broken, 
and  fractured,  and  bruised,  and  the  said  plaintiff  was  otherwise 
greatly  injured,  wounded,  and  cut,  insomuch  that  the  said  plaintiff 
then  became  sick,  lame,  and  sore,  and  so  continued  for  the  space 
of  months  thence  next  ensuing,  and  was  during  all  that  time 

prevented  from  attending  to  his  lawful  business  and  carrying  on 
the  same ;  and  the  said  plaintiff  was  forced  to  expend  a  large  sum 
of  money,  to  wit,  the  sum  of  $  ,  in  and  about  the  endeavoring 
to  cure  the  said  fractures,  wounds,  cuts,  and  bruises ;  to  the  damage 
of  the  said  plaintiff  § 

The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

The  character  of  the  injury  sustained  should  be  stated  according 
to  the  fact.  It  is  unnecessary  to  state  the  terminus  of  the  jour- 
ney ;  but  if  stated,  it  must  be  done  correctly. 

As  to  the  duty  of  coach-owner.  He  is  bound  to  exercise  the 
highest  possible  degree  of  care,  and  if,  by  the  slightest  negligence 
on  his  part,  an  injury  is  sustained  by  a  passenger,  he  can  recover 
the  amount  of  damage  sustained.  Talmadge  v.  Zanesville  and 
Maysville  Eoad  Co.,  11  Ohio,  197;  Jones  v.  Voorhees,  10  lb.  145  ; 
2  Cowp.  81 ;  2  Esp.  533  ;  5  lb.  273 ;  3  Bing.  321 ;  Hall  v.  Steam- 
boat Co.,  13  Conn.  319 ;  Ingalls  v.  Bills,  9  Metcalf,  1 ;  Maury  v.  Tal- 
madge, 2  McLean,  157. 


FORMS   OP   PETITIONS.  497 


170.    FOR   NOT    CARRYING   A   PASSENGER   SAFELY. 

The  said  A  B,  plaintiff,  complains  of  the  said  Little  Miami  Eail- 
road  Company,  defendant,  for  that  the  said  defendant,  before  and 
at  the  time  of  the  committing  of  the  wrongs  and  injuries  herein- 
after Btated,  was  the  owner  of  a  certain  railroad,  with  its  cars  and 
locomotives,  leading  from  the  city  of  Cincinnati  to  the  town  of 
Springfield,  and  was  accustomed  and  used  by  said  railroad  to 
transport  passengers  and  their  baggage  over  and  upon  said  rail- 
road, for  certain  hire  and  reward  ;  and  thereupon  the  said  plaintiff, 
on  the         day  of  ,  A.  D.  18     ,  at  the  special  instance  and  re- 

quest of  the  said  defendant,  became  and  was  a  passenger  on  the 
railroad  of  the  said  defendant,  and  in  the  cars  thereof,  to  be 
safely  carried  from  to  ,  for  a  certain  hire  and  reward 

to  the  said  defendant  in  that  behalf;  and  the  said  plaintiff  was 
then  received  by  the  said  defendant  in  the  cars,  and  on  the  railroad 
aforesaid,  as  such  passenger,  to  be  carried  thereby  as  aforesaid; 
yet  the  said  defendant,  not  regarding  its  duty  in  that  behalf,  did, 
by  its  servants  and  agents,  so  carelessly,  negligently,  and  unskill- 
fully  conduct  the  running  of  said  cars  and  railroad  that,  on  the 
day  of  ,  A.  D.  18     ,  by  the  carelessness,  negligence,  and 

default  of  its  said  agents  and  servants,  and  for  want  of  due  care 
and  attention  to  its  duty  in  that  behalf,  the  said  car  was  run  off 
the  track  of  said  railroad,  and  thrown  down  the  embankment 
thereof,  whereby  the  said  plaintiff  was  greatly  cut,  bruised,  and 
wounded,  and  had  the  right  leg  and  the  left  arm  of  him,  the  said 
plaintiff,  badly  fractured  and  broken,  so  that  he,  the  said  plaintiff, 
became  and  was  sick,  lame,  and  unable  to  walk,  and  was  wholly 
unable  to  attend  to  the  transaction  and  performance  of  his  usual 
and  necessary  business,  and  so  continued  from  thence  hitherto; 
and  said  plaintiff  has  been  put  to  great  expense,  to  wit,  to  the 
amount  of  8  ,  in  endeavoring  to  cure  big  said  wounds,  bruises, 
and  fractures;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  be  prays  judgmenl  against  the  said  defendant  for  the 
said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

171.    AGAINST   R.  R.  CO.  FOR    KILLING  A  PERSON   UNDER   THE   STATUTE. 

The  said  A  B,  administrator  of  the  said  C  D,  deceased,  plaint  ill', 
complains  of  the  said  Bit.  A:  C.  Ii.  \l.  Co.,  defendant,  tin-  that,  here- 
tofore, to  wit,  on  the        day  of  ,  a.  d.  18    ,  the  said  C  D  was 
a  pa                           irs  of  the  said  defendant,  running  from  , 
vol.  i — 32 


498  FORMS   OF   PETITIONS. 


in  the  county  of  and  Slate  of  ,  to  ,  in  the  county 

of  and  State  of  ;  and  that  the  said  defendant,  by  its 

agents,  so  carelessly,  negligently,  and  unskillfully  conducted  and 
managed  said  cars  that  the  same  were  thrown  from  the  track  and 
over  an  embankment,  and  the  said  C  D  instantly  killed  by  means 
of  said  carelessness,  neglect,  and  unskillfulness ;  and  the  said 
plaintiff  further  saith  that  he  has  been  duly  appointed  and  quali- 
ties administrator  of  the  said  C  D,  so  as  aforesaid  killed,  and  that 
the  said  C  D  left  E  F  as  his  widow,  and  G  II,  I  K,  etc.,  as  his  next 
of  kin  ;  to  the  damage  of  said  plaintiff  five  thousand  dollars. 

The  said  plaintiff  therefore  prays  a  judgment  against  said  de- 
fendant for  the  said  sum  of  five  thousand  dollars,  his  damages  so 
as  aforesaid  sustained. 

172.    SAME   IN   ANOTHER   FORM. 

The  said  A  B,  administrator  of  the  said  C  D,  deceased,  plaintiff, 
complains  of  the  said  L.  M.  R.  R.  Co.,  defendant,  for  that,  hereto- 
fore, to  wit,  on  the  day  of  ,  A.  D.  18  ,  the  said  defendant, 
by  its  agents,  so  negligently,  carelessly,  and  unskillfully,  ran  its 
train  of  cars  and  locomotive  along  its  track  in  the  city  of  ,  that, 
without  the  fault  of  the  said  C  D,  deceased,  the  said  train  of  cars 
and  locomotive  was  negligently  and  carelessly  run  against  and 
over  the  said  C  D,  and  the  said  C  D  was,  by  such  neglect,  careless- 
ness, and  unskillfulness,  instantly  killed.     (Proceed  as  in  last  form.) 

173.    FOR   KILLING   A   BRAKEMAN. 

The  said  A  B,  administrator  of  the  said  C  D,  deceased,  plaintiff, 
complains  of  the  C.  &  H.  R.  R.  Co.,  defendant,  for  that,  the  said 
C  D  was  in  the  service  of  the  said  defendant  as  a  brakeman  on  ono 
of  the  train  of  cars  of  said  defendant,  ruuning  from  to  , 

on  the        day  of  ,  a.  d.  18     ,  and  that  as  said  train  was  ap- 

proaching the  station,  where  it  was  to  stop,  the  said  C  D,  in 

obedience  to  the  usual  signal  of  the  engineer  for  that  purpose 
given,  attempted  to  wind  up  one  of  the  brakes  of  said  train  to 
check  the  speed  thereof,  and  that  in  so  doing  the  brake-chain 
parted  and  the  brake  gave  way,  whereby  the  said  C  D  Avas  then 
and  there,  without  any  negligence  or  default  on  his  part,  thrown 
from  said  train  and  under  and  between  the  cars  thereof,  and  so 
injured  thereby  that  he  instantly  (or,  the  same  day,  or,  in 
days  thereafter,)  died  therefrom  ;  and  the  said  plaintiff  avers  that 
the  death  of  the  said  C  D  was  so  caused  by  the  neglect  and  careless- 
ness of  the  said  defendant  in  providing  and  using  a  defective  and 


FORMS   OP    PETITIONS.  499 


unsafe  brake  and  chain ;  and  the  said  plaintiff  further  saith  that, 
etc.  (as  in  first  form.) 

174.    FOR   SELLING   MORPHINE    FOR   QUININE. 

The  said  A  B,  administrator  of  C  D,  deceased,  plaintiff,  complains 
of  the  said  E  F  and  others,  defendants,  for  that,  heretofore,  to  wit, 
on  the         day  of  .  a.  d.  IS     ,  at  ,  the  said  C  D,  then 

being  a  minor  under  the  age  of  twenty-one  years,  (or,  if  a  female, 
under  the  age  of  eighteen  years  in  Ohio.)  was  sick  and  had  pre- 
scribed for  him  a  certain  medicine,  to  wit,  quinine,  and  that  the 
C  D,  by  one  G  H,  applied  to  the  said  defendants,  who  were  then 
and  there  engaged  in  the  business  of  selling  drugs  and  medicines, 
and  filling  prescriptions  given  by  physicians  for  the  sick  and  infirm, 
and  requested  said  defendants  to  put  up  grains  of  quinine  as  a 
prescription  to  be  administered  to  the  said  C  D,  and  that  the  said 
defendants  then  and  there  undertook  to  fill  said  prescription,  and 
did  then  and  there  pretend  to  fill  the  same  according  to  the  require- 
ments thereof;  yet  the  said  plaintiff  saith  that  the  said  defendants, 
by  their  agents,  so  carelessly  and  negligently  put  up  said  prescrip- 
tion that,  instead  of  putting  up  quinine,  as  was  called  for,  they  put 
up  grains  of  morphine  instead  thereof,  and  that  the  said  C  D, 
without  any  fault  or  neglect  on  his  part,  took  the  said  morphine  so 
put  up  as  and  for  quinine,  and  that  the  said  C  D  afterward  then 
and  there  died  from  the  effects  of  said  morphine;  and  the  said 
plaintiff  further  avers  that  he  has  been  duly  appointed  adminis- 
trator of  the  said  C  D,  and  that  one  L  31  is  the  next  of  kin  of  said 
C  D  so  deceased;  to  the  damage  of  said  plaintiff  five  thousand 
dollars. 

Whereof  he  prays  judgment  against  said  defendants  for  the  said 
sum  of  (5,000,  his  damages  so  sustained. 

Vide  Quin  v.  Moore  et  al.,  15  N.  Y.  432. 

The  mode  of  stating  the  injury  will  vary  with  the  circumstances. 
It  is  necessary  to  aver  the  death,  the  appointment  of  administrator, 
and  the  fael  of  there  being  next  of  kin.  It  makes  no  difference 
if  there  is  no  widow.  A  bastard,  in  Ohio,  is  next  of  kin.  There 
muBl  be  nexl  of  kin,  or  widow,  to  justify  a  recovery.  Vide  Lyons, 
Adm'r,  v.  The  Cleveland  &  Toledo  \l  R.  Co.,  7  Ohio  St.  33G;  Lucas 
r.  X.  V.  Cen.  R.  I:.  Co.,  21  Barb.  lilT;  10  Eng.  Law  &  Eq.437j 
State  '•.  Gilmore,  I  Fost.  161  ;  Quin  v.  Moore,  15  N.  Y.  132;  Muni 
?•.  M.  South.  I!.  !>'..  1('  Ohio  St.  272.  Action  lies  against  druggist 
for  carelessly  dealing  out  medicine.     Quin  v.  Moore,  15  N.  Y.  432  ; 


500  FORMS   OF   PETITIONS. 


Railroad  Co.  r.  Webb,  12  Ohio  St.  474;  Oldfield  v.  N.  Y.  &  II.  E. 
R.  Co.,  14  N.  Y.  310;  Hall  v.  Orain,  2  West.  L.  Month.  593.  The 
injur)'  must  he  stated  as  though  the  deceased  had  himself  brought 
the  action. 

Where  the  accident  happens  from  a  collision,  the  fact  should  be 
SO  Stated;  that  the  train  to  which  said  car  was  attached  came  in 
collision  with  a  certain  other  train  of  cars  of  the  said  defendant, 
whereby  the  said  car  was  with  great  violence  thrown  against  an- 
other car,  and  oft'  the  track  of  said  railroad,  and  the  said  plaintiff, 
etc.  It  would  not  seem  to  be  necessary  to  describe  any  more  mi- 
nutely the  manner  of  carriage  and  of  the  accident.  7  Ohio  St. 
33G;  10  Ohio  St.  272. 

As  to  next  of  kin,  the  court  held,  in  Lyon's  Adm'r  v.  Cleveland 
and  Toledo  E.  B.  Co.,  that  brothers  and  sisters  of  the  deceased 
were  next  of  kin  in  the  absence  of  children.  Scott,  J.,  says  in  this 
case  :  "  The  question  presented  by  the  demurrer  is,  whether,  under 
this  statute,  an  action  can  be  maintained  for  the  solo  benefit  of  the 
brothers  and  sisters  of  a  deceased  person  who  leaves  no  widow, 
without  an  allegation  in  the  petition  of  such  special  circumstances 
as  Would  render  the  death  a  pecuniary  injury  to  them. 

"A  right  of  action  is  given  b}^  this  statute  to  the  personal  repre- 
sentative of  the  deceased,  merely  as  a  trustee,  and  for  the  exclu- 
sive benefit  of  the  widow  and  next  of  kin.  Hence  it  would  seem 
to  be  clear  that,  in  order  to  the  maintenance  of  the  action,  there 
must  be  a  widow,  or  next  of  kin,  to  whom  the  amount  recovered 
could  be  distributed.  And  so  it  was  held  under  a  similar  statute 
of  New  York,  in  Lucas  v.  K  Y.  Central  E.  E.  Co.,  21  Barb.  247. 

But  if  there  be  persons  in  whom  the  beneficial  interest  in  the 
judgment  to  be  recovered  can  vest,  then  the  only  other  conditions 
to  which  the  right  of  action  is  subjected  by  the  terms  of  the  stat- 
ute are  :  first,  that  the  death  shall  have  been  caused  by  such 
wrongful  act,  neglect,  or  default,  as  would  (if  death  had  not  en- 
sued) have  entitled  the  party  injured  to  maintain  an  action  against 
the  defendant,  and  recover  damages  in  respect  thereof;  secondly, 
that  the  action  be  brought  by  and  in  the  name  of  the  personal 
representative  of  the  deceased  ;  and,  thirdly,  that  it  be  commenced 
within  two  years  from  the  time  of  his  death. 

"  Subject  to  these  conditions,  the  statute  gives  a  right  of  action, 
and  seems  to  regard  the  widow  and  next  of  kin  as  sustaining,  at 
least,  a  nominal  pecuniary  injury,  in  all  such  cases,  from  the 
wrongful  act  of  the  defendant.     Quin  v.  Moore,  15  N.  Y.  432. 

"  Questions  may  arise,  upon  the  trial  of  this  cause,  as  to  the  con- 


FORMS   OP   PETITIONS.  501 


Btruction  of  the  rule  of  damages  furnished  by  the  second  section 
of  this  statute  ;  hut  no  such  questions  arc  properly  before  us.  The 
question  raised  by  the  demurrer  does  not  relate  to  the  amount  of 
the  recovery,  but  is  simply,  can  an  action  be  maintained  on  the 
case  stated  in  the  petition?  We  think  it  can."  Vide  Pierce  on 
Am.  R.  E.  Law,  257 ;  Blake's  Adm'x  v.  Midland  E.  E.  Co.,  10  Eng. 
L.  &  Eq.  437.  In  assessing  damages,  the  jury  are  confined  to  in- 
juries of  which  a  pecuniary  estimate  can  be  made,  and  can  not 
take  into  consideration  the  mental  suffering  to  the  survivors  by  his 
death.  Blake  v.  Midland  E.  E.  Co.  supra;  Armsworth  v.  South- 
eastern E.  E.  Co.,  11  Jurist,  758;  Duncan  v.  Findlater,  G  CI.  &  F. 
894;  Canning  v.  Williamstown,  1  Cush.  451;  L.  E.,  1  Exch.  21. 
Eeceiver  of  a  railroad  liable,  as  if  road  run  by  directors  of  corpo- 
ration. Meara's  Adm'r  v.  Holbrook  et  ah,  20  Ohio  St.  137 ;  Potter, 
Eeceiver,  v.  Bunnell,  20  Ohio  St.  150 ;  Bank  of  Greenfield  v.  M.  & 
C.  E.  E.  Co.,  20  Ohio  St.  259; 

175.    AGAINST    RAILROAD    FOR    INJURY    FOR   DEFECTIVE    STATION. 

The  said  A  B  complains  of  the  said  E,  E.  Co.,  for  that 

heretofore  and  now  the  said  defendant,  a  corporation  duly  organ- 
ized under  the  law  of  the  State  of  ,  was  and  is  engaged  in 
the  business  of  a  common  carrier  of  passengers,  for  hire,  on  its 
railway,  and  used  and  employed  a  certain  station  situate  at  , 
in  the             of             ,  in  the  county  of             ,  and  on  the  line  of 

id  railroad,  for  the  reception  and  accommodation  of  the  pas- 
sengers in  getting  off  and  on  the  cars  running  on  the  said  line  of 
railroad  ;  and  that  said  station  was  in  the  possession  and  manage- 
ment of  said  defendant,  and  that  hence  it  became,  and  is,  the  duty 
of  said  defendant  to  keep  said  station  in  a  reasonably  sate  condi- 
tion for  the  Bafety  of  passengers  getting  on  and  oil' the  cars  of  said 
defendant  at  said  station;  yet  the  said  defendant  carelessly  and 
negligently  managed  said  station,  and  so  carelessly  and  negligently 
kept  the  staircase  and  approaches  thereto  in  a  dangerous  and  slip- 
pery state  and  condition,  and  did  not  provide  hand-rails  or  suf. 
ficient  accommodation  for  sale  access  by  and  through  Baid  station 
to  and   from   the  cars  of  said  defendant,  that  said   plaintiff,  by 

in  of  the  premises,  and  without  default  on  his  pari,  having 
I  i  received  by  said  defendant  as  a  passenger  at  said  station,  fell, 
and  was  thrown  down  the  said  staircase,  and  greatly  injured  in 
tins,  to  wit,  |  ''<  the  kind  and  ea  tent  of  injury, )  and  comp<  Hod 

aploy  a  surgeon,  nursi  s,  and  attendants  to  attend  upon  him, 
while  said  plaintiff  was  confined  to  bis  home  and  bod  byres 


502  FORMS   OF   PETITIONS. 


of  said  injury,  and  to  pay  a  largo  sum  of  money  therefor,  to  wit, 
the  Bum  of  $  ,  (state  all  the  special  damage  sustained,  and  any 
special  expenses;)  to  the  damage  of  the  plaintiff  dollars. 

"Wherefore  ho  prays  judgment  against  said  defendant  for  said 
sum  of  $  ,  his  damages  so  sustained. 

WTP,  Attorney  for  Plaintiff. 

This  petition  is  taken  from  the  case  of  Grafter  v.  Metropolitan 
E.  E.  Co.,  L.  B,,  1  C.  B.  300  ;  Longmorc  v.  G.  W.  E.  E.  Co.,  19  C.  B.? 
K  S.  183;  Toomcy  v.  The  Brighton  E.  E.  Co.,  3  C.  B.,  N.  S. 
146.  In  the  first  case  the  evidence  showed  no  negligence,  hut  in 
Longmore's  case  it  did. 

176.    FOR   INJURIES   ON    STREET   RAILROAD. 

The  said  A  B  complains  of  the  said  ,  a  corporation  organ- 

ized under  the  law  of  ,  for  that  the  said  defendant,  on  the 

day  of  ,  a.  d.  18     ,  was  the  owner  of  a  certain  street  rail- 

road line,  with  its  ears  running  thereon,  and  which  cars  were 
drawn  by  horses,  from  the  corner  of  streets  to  a  point  , 

in  the  city  of  ,  in  the  county  of  ;  and  that  on  said 

day  of  ,  A.  D.  18     ,  the  said  plaintiff  was  walking  along 

street,  between  and  streets,  in  said  city  of  ,  the 

same  being  a  public  highway,  open  and  free  to  all  persons  to  pass 
and  repass  at  all  times  at  their  own  free  will  and  pleasure  ;  and 
that  an  excavation  had  been  dug  across  said  street,  at  or  near 

to  said  street,  and  over  which  excavation  the  track  of  said 

railroad  ran,  and  the  said  excavation  was  dangerous  for  the  cars 
and  horses  of  said  defendant  to  pass,  and  that  for  safety  to  said 
cars  and  horses,  the  said  defendant,  by  its  agents  and  servants, 
caused  the  horses  drawing  car  No.  4,  on  said  line,  to  be  unhitched 
from  said  ear,  and  attempted  to  drive  the  said  horses  around  said 
excavation,  and  in  so  doing  the  said  defendant,  by  its  agents  and 
servants,  so  negligently,  carelessly,  and  improperly  conducted  and 
managed  said  business  and  horses,  that  the  said  horses  ran  off  and 
away  from  said  servants  of  said  defendant  then  driving  the  same, 
whereby  the  said  horses  then  ran  against  the  said  plaintiff  while 
she  was  so  walking  in  said  highway,  and  without  any  fault  on  her 
part,  knocked  her  down,  and  thereby  then  causing  a  fracture  of 
,  and  badly  bruising  and  wounding  her,  and  other  injuries 
to    her  then  and  there  did  to  her  damage  $ 

Wherefore  she  prays  judgment  against  said  defendant  for  said 
sum  of  S         ,  her  damages  so  sustained. 


FORMS   OF   PETITIONS.  503 


The  above  is  from  the  ease  of  Pendleton  Street  E.  E.  Co.  v.  Shires, 
18  Ohio  St.  255.  To  this  there  was  an  answer  of  a  page  and  a  half 
of  printed  matter,  when  a  single  paragraph,  denying  the  negligence, 
was  all  that  was  necessary.  The  answer  is  filled  with  admissions, 
a  kind  of  pleading  not  allowed  by  the  code.  The  only  answer  the 
code  admits  of  is  either  a  denial  of  some  or  all  the  averments  in 
the  petition,  or  the  statement  of  new  matter  constituting  a  defense, 
counter-claim,  or  set-off.  A  jury  can  never  tell  what  such  an  an- 
swer ] nits  in  issue. 

In  this  case  the  court  ruled  that  the  charge  was  erroneous,  be- 
cause it  seemed  to  imply  an  obligation  on  the  company  to  exercise 
the  highest  degree  of  care,  and  to  employ  the  very  best  possible 
well-known  means  and  appliances  in  respect  to  their  teams  and 
cars,  to  insure  the  safety  of  the  general  public.  If  it  had  been  a 
passenger  on  one  of  their  cars  that  was  injured,  the  charge  would 
have  been  well  enough ;  but  as  to  the  case  of  an  individual  of  the 
general  public,  toward  whom  the  company  occupied  no  relation 
arising  out  of  contract,  express  or  implied,  the  rule  is  different,  and 
is  thus  laid  down  in  Clew,  Col.  k  Cin.  E.  E.  Co.  v.  Terry,  8  Ohio 
St.  570  :  '•  The  degree  of  care  required  in  such  cases  of  empkrves  " 
(of  the  companj-),  "  and  also  of  the  party  injured,  is  merely  ordi- 
nary care  and  prudence,  the  perils  to  be  encountered,  and  all  other 
circumstances  under  which  the  injury  was  inflicted  and  received, 
being  considered." 

This  form  will  answer  for  merely  running  against  one  by  omit- 
ting all  about  the  excavation,  etc. 

177.    INJURING   FASSENGER. 

The  said  A  B,  plaintiff,  complains  of  the  said  ,  a  corporation 

duly  organized  under  the  law  of  the  State  of  ,  defendant,  for 

that  the  said  defendant,  on  the        day  of  ,  a.  d.  18     ,  owned 

and   used  a  certain  railroad,   leading  from  to  ,  in  the 

State   of  ,   and   of  certain   cars   and   locomotives   running 

thereon,  and  was  thereby  engaged  in  the  business  of  common  car- 
riers of  passengers  and  their  baggage  over  its  said  line  of  railroad; 
and  that  on  the  said        day  of  .  a.d.  18    ,  the  said  plaintiff 

was  a  passenger  on  one  of  the  trains  and  cars  of  said  defendant, 

going   from  to  .  ill   said    State  of  ,  with    his   bag- 

gage;*  and    thai    said   defendant,    by    its   agents  and   servants,   so 

carelessly,  negligently,  and  anekillfully  and  improperly  managed 

and  conducted  said  train  and  ears  that  the  said  train  and  ears  rail 
with  gnat  violence  into  and  against  a  train   ami   cars  of  said   de- 


504  FORMS   OP   PETITIONS. 


fondant,  coming  on  Baid  track  from  an  opposite  direction,  and 
thereby  Bmashed  and  broke  said  curs  in  said  train,  and  thereby  in- 
jured the  said  plaintiff  by  said  collision  and  broke,  (here  set.  out 
the  injuries  sustained,)  and  other  wrongs  and  injuries  then  and 
thereby  inflicted  on  the  plaintiff  to  his  great  damage  8 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  §        ,  his  damages  so  sustained. 

W  T,  Attorney  for  Plaintiff. 

178.    WHEN    NEGLIGENCE    OF    OTHER   TRAIN. 

(Follow  the  last  form  to  *',  and  proceed:)  and  the  said  plaintiff 
further  saith  that  another  train  and  cars  of  said  defendant  was  at 
the  same  time  running  on  the  track  of  its  railroad  in  an  opposite 
direction  to  the  train  on  which  said  plaintiff  was  going,  and  that 
said  defendant,  by  its  agents  and  servants,  so  carelessly,  negli- 
gently, and  improperly  managed  and  conducted  said  train  and 
cars  coming  in  the  opposite  direction  to  the  train  and  cars  on 
which  said  plaintiff  was  riding,  that  the  train  and  cars  so  coming 
toward  the  train  and  cars  on  which  plaintiff  was  riding,  by  said 
carelessness,  negligence,  and  improper  conduct,  ran  against  and 
into  the  said  train  and  cars  on  which  said  plaintiff  was  then  riding, 
and  broke  and  smashed  said  cars,  and  threw  some  of  them  from  the 
track,  and  thereby  injured  the  said  plaintiff  in  this,  to  wit:  (here 
set  out  the  injury  and  extent  of  it,  with  any  special  damage  sustained, 
as  the  fact  may  be,)  and  other  injuries  then  and  there  inflicted  by 
said  collision  on  and  to  the  said  plaintiff;  to  his  damage  $ 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  $         ,  his  damages  so  as  aforesaid  suffered  and  sustained. 

A  B,  Attorney  for  Plaintiff. 

179.  INJURY  TO  ONE  NOT  ON  TRAIN. 

The  said  A  B,  plaintiff,  complains  of  the  ,  a  corporation 

duly  organized  under  the  laws  of  the  State  of  ,  defendant,  for 

that  the  said  defendant  owned  and  used  a  certain  railway,  with  its 
locomotives  and  cars,  running  from  to  ,  in  said  State 

of  ,  before  and  at  the  time  of  the  committing  the  grievances 

hereinafter  set  forth,  and  was  accustomed  and  did  in  fact  run  its 
locomotives  and  cars  over  said  line  of  railway,  in  trains  carrying 
passengers  or  freight,  and  otherwise  ;  and  that  on  the  day  of 

,  a.  D.  18     ,  the  said  plaintiff  was  going  with  a  wagon  and 
team  of        horses  along  the  road  leading  from  to  ,  and 

which  road  crossed  the  track  of  said  railroad  at  ,  in  said 


FORMS   OP   PETITIONS.  505 


county  of  ;  and  that  the  said  defendant,  by  its  agents  and 

servants,  so  carelessly,  negligently,  and  improperly  managed  and 
conducted  its  trains  going  on  said  road  that,  by  reason  of  such 
carelessness,  negligence,  and  improper  management,  the  locomotive 
and  cars  of  said  defendant  ran  against  and  over  the  horses  and 
wagon  of  said  plaintiff  as  the  same  were  being  driven  across  the 
track  of  said  railroad,  at  the  said  place,  and  then  thereby,  without 
any  fault  on  the  part  of  the  plaintiff,  killed  said  horses,  broke  in 
pieces  said  wagon,  and  greatly  injured  said  plaintiff  in  this,  to  wit, 
(here  state  any  injury  received  by  the  plaintiff,)  whereby  and  by 
reason  of  which  said  plaintiff  was  disabled  and  laid  up,  unable  to 
attend  to  his  usual  business  for  the  space  of  days,  and  was  com- 
pelled to  employ  surgeons  and  physicians  to  attend  upon  him  at  a 
great  expense;  and  other  wrongs  were  then  there  done  by  said 
defendant  to  said  plaintiff;  to  his  damage  8 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

E  F,  Attorney  for  Plaintiff. 

These  forms  will  cover  most  of  the  cases  of  injuries  to  passengers 
and  third  persons.  The  law  is  being  settled  by  numerous  cases  in 
England  and  in  this  country.  Among  the  cases  are  the  following, 
which  establish  the  doctrine  of  the  greatest  care  for  the  safety  of 
passengers,  and  ordinary  care  toward  persons  not  on  the  train  : 
Pendleton  Street  11.  R.  Co.  v.  Shires,  18  Ohio  St.  255;  Cleveland, 
Columbus  i*c  Cincinnati  It.  R.  Co.  v.  Terry,  8  Ohio  St.  570  ;  Trow 
,-.  Vermonl  Central  R.  \l.  Co.,  24  Vt.  -1;  7;  Kerwhacker  v.  C.  C.  & 
C.  R.  R.  Co.,  3  Ohio  St.  172.  Same  v.  Keary.  R  lb.  201;  Same  v. 
Elliot,  4  lb.  474;  Tracy  v.  Troy  &  Boston  R.  R.  Co.,  38  K  Y.  43:5; 
Bradley  v.  Buffalo,  N.  V.  &  Erie  R.  R.  <  Jo.,  3 1  N.  Y.  427. 

Dwight,  .!..  in  Con/.ales  y.  N.  Y.  &  II.  R.  R,  Co.,  38  N.  Y.  410, 
Bays  :  ••  The  rules  of  law.  applicable  to  this  case,  must  be  considered 
as  settled,  to  wit:  First.  That,  the  party  seeking  to  recover  for 
injuries  occasioned  by  the  negligence  of  another,  must  be  shown 
to  be  free  from  negligence  contributing  in  any  degree  to  occa- 
sion   the   injury  complained  of. 

•■  Second.  Thai  a  person  attempting  to  cross  the  track  ofa  railroad 
musi  make  use  of  hie  ordinary  faculties  to  ascertain  if  there  is  dan- 
ger in  the  attempt,  or  be  will  be  guilty  of  negligence.  Ernst  v. 
Hud.  b'iv.  R.  R.  Co.,36  How.  84;  Wilcox  v.  Rome  &  Watertown 
R.  R,  Co.,  39  N.  V.  358. 


500  FORMS   OF   PETITIONS. 


"  Third.  That  the  question  of  negligence,  the  facts  being  uncon- 
troverted,  is  a  question  of  law  for  the  court. 

"  Brown  v.  N.  Y.  Central  R.  R.  Co.,  34  N.  Y.  397  ;  Sullivan  v.  Same, 
3  I  II).  29  ;  Beisiegel  v.  Same,  34  lb.  022 ;  Ernst  v.  Hud.  Riv.  R.  R. 
Co.,  35  N.  Y.  9 ;  Wilds  r.  Hud.  Eiv.  R.  R.  Co.,  29  N.  Y.  325  ;  Mackey 
v.  N.  Y.  Central  R.  R.  Co.,  35  N.  Y.  75  ;  Steves  v.  O.  &  S.  R.  R.  Co., 
18  N.  Y.  422 ;  37  N.  Y.  287  ;  40  N.  Y.  9,  145  ;  39  N.  Y.  34,  227,  358  ; 
34  N.  Y.  404  ;  L.  R,,  3  Q.  B.  549  ;  17  N.  Y.  302  ;  29  N.  Y.  315  ;  34  lb. 
622;  94  Eng.  C.  L.  881,  where  gross  neglect  is  defined;  L.  R.,  2 
Q.  B.  204;  L.  R.,  2  C.  B.  371 ;  L.  R.,  1  C.  B.  53;  Tunney  v.  Mid- 
land R,  R.  Co.,  L.  R.,  1  C.  B.  291  ;  L.  R.,  1  C.  B.  300;  Lunty.  Lon- 
don &  Northwestern  R.  R.  Co.,  L.  R,,  1  Q.  B.  277 ;  L.  R.,  1  House 
of  Lords,  95  ;  L.  R.,  1  Exch.  21,  239,  205 ;  24  Law  &  Eq.  122  ;  L.  R., 
3  Exch.  114 ;  L.  R.,  2  C.  B.  031 ;  L.  R.,  3  C.  B.  210,  320,  308 ;  L.  R., 
3  Q.  B.  555,  733 ;  100  Eng.  C.  L.  705,  508  ;  90  lb.  108  ;  90  lb.  714 ; 
18  Ohio  St.  399.  These  two  last  cases  relate  to  children  injured. 
Negligence  can  not  be  imputed  to  a  child.  44  N.  Y.  459  ;  1  Q.  B. 
29 ;  31  Penn.  St.  358,  372  ;  12  Wright,  (Penn.)  223;  57  Penn.  St.  172, 
187  ;  Crippen  v.  N.  Y.  Cen.  R.  R,  Co.,  40  N.  Y.  34 ;  Hulbert  v.  N.  Y. 
Central,  40  N.  Y.  145  ;  Buffett  v.  Troy  &  Boston  R.  R.  Co.,  40  N.  Y. 
168;  Button  v.  Hud.  Riv.  R.  R.  Co.,  18  N.  Y.  248  ;  Holbrook  v.  IT. 
&  Sch.  R.  R.  Co.,  12  N.  Y.  230;  Nichols  v.  Sixth  Av.  R.  R.  Co.,  38 
N.  Y.  131 ;  Webster  v.  Hud.  Riv.  R.  R.  Co.,  38  N.  Y.  2G0 ;  Tracy  v. 
Troy  &  Boston  R.  R.  Co.,  38  N.  Y.  433 ;  85  Eng.  C.  L.  849  ;  94  lb. 
573;  L.  R,  3  H.  of  L.  330;  L.  R.,  3  C.  B.495;  L.  R.,  3  Exch.  140, 
150,  189;  37  N.  Y.  210,  289.  Some  of  these  cases  are  on  negligence 
in  other  than  railroad  cases.  Muhl,  Adm'r,  v.  The  Mich.  Southern 
R.  R.  Co.,  10  Ohio  St.  272;  C.  &  P.  R.  R.  Co.  v.  Sutherland,  19  Ohio 
St.  151 ;  L.  R.,  3  C.  B.  308." 

180.    EXPELLING   PASSENGER    FROM   THE    CARS. 

The  said  A  B,  plaintiff,  complains  of  the  said  ,  for  that  the 

said  is  a  corporation  duly  organized  under  the  laws  of  , 

for  the  purpose  of  constructing  and  running  a  railroad  from 
to  ,  in   said  State   of  ,  and  that  before  the  commit- 

ting of  the  wrongs  and  grievances  hereinafter  stated,  owned  and 
used  said  railroad  running  from  to  ,  in  State  of  , 

with  its  locomotives  and  cars,  as  a  common  carrier  of  freight  and 
passengers  over  said  line  of  railroad;  and  that  said  plaintiff,  on  the 
day  of  ,  a.  d.  18     ,  bought  a  ticket  from  the  agent  of  said 

defendant,  authorizing  him  as  a  passenger  to  pass  over  said  road 
in   the   cars  of  the   defendant  from  to  ,   and   that, 


FORMS   OF   PETITIONS.  507 


as  such  passenger,  said  plaintiff  entered  the  cars  of  said  defendant 
as  a  passenger  and  took  bis  seat  therein ;  yet  the  said  defendant, 
by  its  agents  and  servants,  disregarding  its  duties  as  such  common 
carrier  of  passengers,  did,  before  the  ears  of  said  defendant  had 
reached  the  end  of  said  journey,  to  wit,  at  ,  on  the  line  of  said 

road,  -wrongfully,  forcibly,  and  unlawfully  force  and  expel  the  said 
plaintiff  from  the  cars  of  said  defendant,  and  refused  the  said 
plaintiff  permission  further  to  ride  in  said  cars  of  said  defendant, 
and  left  said  plaintiff  there  without  having  completed  his  said 
journey,  -whereby  he  was  greatly  delayed  in  his  business,  and  other 
wrong  then  and  there  -wrongfully,  forcibly,  and  unlawfully  did  to 
said  plaintiff;  to  his  damages  8 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

E  T,  Attorney  for  Plaintiff. 

The  law  in  regard  to  the  expulsion  of  passengers  will  be  found 
stated  and  enforced  in  the  folio-wing  cases:  Hibbard  v.  N.  Y.  & 
Erie  E.  E.  Co.,  15  X.  Y.  455  ;  Commonwealth  v.  Power.  7  Metcalf, 
59G;  Hall  r.  Power.  12  lb.  482  ;  Nellis  r.  N.  Y.  Central,  30  N.  Y. 
505;  Little  Miami  E.  E.  Co.  v.  Wetmore,  19  Ohio  St.  110;  Pitt., 
Ft.  W.  &  Chicago  E.  E.  Co.  v.  Slusser,  19  Ohio  St.  157;  Atlantic 
&  Great  West.  E.  E.  Co.  v.  Dun,  19  Ohio  St.  1G2.  Corporations  are 
liable  to  punitive  damages,  as  an  individual  -would  be,  for  the  con- 
duct of  its  servants  within  the  scope  of  their  authority.  Tho 
court,  in  the  case  last  cited,  say  :  "  The  foundation  principle,  which 
govern-,  these  cases,  it  Beems  to  us,  is  fount!  in  the  maxim,  qui  facit 
per  alium,  facit  per  se.  The  act  of  the  servant,  done  within  the 
scope  and  in  the  exercise  of  his  employment,  is  in  law  the  act  of 
tie-  master  himself.  And  this  legal  unity  of  tho  principal  and 
agent,  says  the  Supreme  Court  of  Mississippi,  in  New  Orleans, 
Jackson  and  Great  Northern  1!.  R.  Co.  v.  Bailey,  40  Miss.  45:;.  in 
re8ped  to  the  wrongful  or  tortious,  as  well  as  to  the  rightful  acts 
of  the  agent,  done  in  the  course  of  his  employment,  is  an  incident, 
which  the  law  has  wisely  attached  to  the  relation  from  it--  earliest 
history."  Phila.,  Wilm.  &  Bait.  II.  R.  Co.  v.  Quigiey.  21  How.  U. 
S.202;  Eopkinsv.  Atlantic  &  St.  Law.  R.  R.Co.,36  X.  E.  9.  Where 
the  agenl  acts  outside  of  his  authority,  tie'  corporation  is  not  liable, 

Little  Miami   1,'.   II.  ('o.  v.  Wetmore,  19  Ohio  St.  110;   Eiggins  v. 

W.  'I'.  &  i:   li.  Co.  16  N.  V.  2:;. 


503  FORMS  OP  PETITIONS. 


181.  LOSS  OP  LUGGAGE  OR  BAGGAGE. 

The  said  A  B,  plaintiff,  complains  of  said  ,  defendant,  for 

that  the  said  defendant  is  a  corporation  duly  organized,  under  the 
laws  ot  the  State  of  ,  and  were  common  carriers  of  passengers 

and  their  luggage,  from  to  ,  by  railway,  (or,  by  steam- 

ship, or,  in  part  by  steamship  and  in  part  by  railway,  giving  the  ter- 
mini of  each,)  and  that  the  plaintiff,  for  reward  therefor  paid  by 
plaintiff  to  the  defendant,  became  and  was  a  passenger  on  the  cars 
Of  said  defendant,  and  at  the  request  of  the  defendant,  to  be  by 
said  defendant,  as  such  common  carriers,  safely  and  securely  car- 
ried by  the  same,  on  the  railroad  and  cars  of  defendant,  with  his 
baggage  or   luggage,  from  to  ,  and  to  have  his  said 

baggage  or  luggage  taken  due  care  of  by  said  defendant  for  the 
purpose  aforesaid,  while  the  same  should  so  remain  in  possession 
of  said  defendant,  and  to  be  delivered  to  him  on  his  arrival  on  said 
railroad  and  cars  at  said  ;  and  the  plaintiff  avers  that  he  has 

performed  all  conditions  precedent  on  his  part  to  be  performed ; 
yet  the  said  defendant,  disregarding  his  duty  in  that  behalf,  failed 
to  deliver  to  said  plaintiff,  at  aforesaid,  his  said  baggage,  or 

luggage,  to  wit,  (here  state  what  the  baggage  teas  in  detail,  as  jar  as 
possible,')  one  trunk,  with  its  contents,  consisting,  to  wit,  of  (here 
state  contents  as  far  as  possible,)  and  various  articles  necessary  and 
convenient  for  a  person  traveling,  of  great  value,  to  wit,  of  the 
value  of  $  ,  and  the  same  became  and  were  wholly  lost  to  said 
plaintiff;  to  his  damage  $ 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

E  T  H,  Attorney  for  Plaintiff. 

Vide  L.  E.,  1  Q.  B.  54,  Lo  Contour  v.  Lond.  &  S.  W.  R.  R.  Co.; 
Richards  v.  Gr.  Br.  &  South  Coast  R.  R.  Co.,  7  C.  B.  830  ;  Peninsular 
&  Oriental  Steam  Nav.  Co.  v.  Shand,  13  Weekly  Rep.  1019 ;  Brandley 
v.  Southeast  R.  R.  Co.,  12  C.  B.,  N.  S.  63 ;  Pianiani  v.  Lon.  &  Gt.  W. 
R.  R.  Co.,  18  C.  B.  220 ;  Belfast  &  Bal.  R.  R.  Co.  v.  Keyes,  9  II.  L. 
Cas.  556. 

It  is  an  elementary  principle  in  the  law  that  the  carriers  of  pas- 
sengers are  liable  as  common  carriers  for  their  ordinary  baggage,  or, 
as  it  is  more  commonly  called  in  English  books,  luggage.  And  it  is 
considered  that,  as  railways  have  made  their  checks  evidence  in 
regard  to  the  delivery  of  baggage,  the  possession  of  such  check  by 
a  passenger  is  evidence  against  the  company  of  the  receipt  of  the 


FORMS   OP   PETITIONS.  509 

baggage.  In  one  case,  the  court  say,  "  it  stands  in  the  place  of  a 
bill  of  lading."  Redfieid  on  E.  E.,  242,  sec.  128.  And  where  differ- 
ent railways,  forming  a  continuous  line,  run  their  cars  over  the 
Whole  line,  and  sell  tickets  for  the  whole  route,  and  check  baggage 
through,  an  action  lies  against  either  company  for  the  loss  of  the 
baggage.  Harte  v.  Ren.  &  Sarato.  E.  R.  Co.,  4  Selden,  37;  Strat- 
ton  v.  K.  Y.  &  X.  H.  E.  E.  Co.,  2  E.  D.  Smith,  184. 

Vide  also  Brooke  v.  Pickwick.  4  Bing.  218  ;  Hawkins  v.  Hoffman, 
6  Hill,  (X.  Y.)  58G;  Bennett  v.  Button,  10  X.  H.  481 ;  Powell  v. 
Myers,  20  Wend.  591 ;  7  Rich.  158, 162;  13  Wend.  611 ;  Eobinson 
v.  Dunmore,  2  Bos.  &  Pul.  41G  ;  Clarke  v.  Gray,  6  East,  504 ;  4  Esp. 
177:  Dill  v.  Railway  Co.,  7  Rich.  158;  Jordan  v.  The  Fall  River 
E.  E.  Co.,  5  Cush.  09  ;  Butcher  r.  L.  &  S.  W.  E.  E.  Co.,  29  Eng.  L. 
&  Eq.  347;  Tower  v.  Utica  &  Sch.  E.  E.  Co.,  7  Hill,  47  ;  Eichards  v. 
Lond.  B.  &  South  Coast  E.  E.  Co.,  7  C.  B.  839 ;  Cohen  v.  Frost,  2 
Ducr.  335;  Steam  Cr.  Palace  v.  Yanderpool,  16  B.  Mon.  302,  308; 
East  Aug.  E.  E.  Co.  v.  Lythgoe,  10  C.  B.  720  ;  2  Eng.  L.  &  Eq.  331 ; 
Cowley  r.  Parsons,  12  C.  B.  291 ;  0  Eng.  L.  &  Eq.  397;  Cuthbcrt- 
son  v.  Parsons,  12  C  B.  304  ;  10  Eng.  L.  &  Eq.  521.  If  the  passen- 
ger assumes  the  care  of  Ins  own  baggage,  the  carrier  is  not  liable. 
White  /•.  AVinuisimmct  Co.,  7  Cush.  155;  Wilson  v.  Hamilton,  4 
Ohio  St.  722  ;  Fisher  c  Clisby,  12  111.  344;  Woods  v.  Devin,  13  111. 
740:  Richards  v.  Fnqua,  28  Miss.  792;  Logan  v.  Pontchartrain 
P.  P.  Co.,  11  Bob.  (La.)  24  ;  Wright  /-.Caldwell,  3  Mich.  51  ;  Young 
v.  Smith,  3  Dana,  91  ;  Marshall  v.  York,  Newcastle  &  Berwick 
E.  P.  Co.,  7  Eng.  L.  &  Eq.  519  ;  Wilson  v.  Grand  Trunk  Railway, 
57  Maine,  138;  S.  C,  1  Am.  20;  Mayall  v.  Boston  &  Maine  R.  P.. 
19  X.  II.  122  ;  Blkins  r.  Bos.  &  Maine  R.  P.,  23  X.  H.  287 ;  Wilson 
r.  Grand  Trunk  Railway,  56  Maine,  60;  Collins  v.  Bos.  &  Maine 
R.  R.,  10  Cush.  507 ;  Elvira  v.  Ilarbcck,  2  Blatch.  339. 

1S2.    SAME    IN    ANOTHEB    FORM. 

The  said  A  B  complains  of  the  said  ,  for  that  the  said  de- 

fendant, before  and  at  the  time  of  the  committing  of  the  grievances 
hereinafter  mentioned,  was  a  corporation  duly  organized  under  the 
laws  ol  the  State  of  ,forthe  construction  and  running  of  a 

railroad,  and  was  the  OWner  and  proprietor  of  a  certain  railway 
fanning  from  to  ,  in  said  State  of  ,  and  of  certain 

carriages,  cars,  and  locomotives  used  by  it,  for  the  carriage  and 
conveyance  of  passengers,  goods,  and  chattels  in,  upon,  and  along 
said  railway  from  to  ,  as  aforesaid,  fin-  hire  and  reward 

to  it  to  be  paid  in  that  behalf,  and  thereupon  the  said  plaintill', 


510  FORMS   OF   PETITIONS. 


heretofore,  to  wit,  on  the         clay  of  ,  a.  d.  18     ,  at  the  re- 

quest of  the  said  defendant,  became  and  was  a  passenger,  for  value 
duly  paid  by  said  plaintiff  to  said  defendant,  (or,  by  E  F  duly  paid 
for  said  plaintiff  to  said  defendant,')  on  one  of  the  cars  or  carriages 
of  said  defendant,  to  bo  by  it  safely  and  securely  carried  and  con- 
veyed thereby,  together  with  his  luggage,  or  baggage,  on  a  certain 
journey  along  and  on  said  railway,  to  wit,  from  to  ; 

and  the  said  defendant  then  and  there  received  said  plaintiff  as  such 
passenger  as  aforesaid,  together  with  his  baggage,  or  luggage,  to 
Avit.  a  certain  portmanteau,  (or,  trunk,  etc.)  containing  divers  goods 
of  the  said  plaintiff,  to  wit,  (here  set  out  the  specific  goods,  clothing, 
etc.,  contained  therein,)  and  thereupon  it  became  and  was  the  duty 
of  said  defendant  to  use  duo  and  proper  care  that  the  said  plaintiff 
and  his  luggage,  or  baggage,  should  be  safely  and  securely  carried 
and  conveyed  by,  upon,  and  along  said  railway  as  aforesaid,  from 
said  to  said  ;  yet  the  said  plaintiff  avers  that  said  de- 

fendant, disregarding  its  duties  in  that  behalf,  did  not  use  due  and 
proper  care  in  that  behalf,  and  that  by  the  carelessness,  and  negli- 
gence, and  default  of  said  defendant,  its  agents  and  servants,  the 
said  luggage,  or  baggage,  was  not  delivered  to  said  plaintiff  on 
arrival  at  said  ;  but  the  same,  by  such  carelessness,  negli- 

gence, and  default  of  said  defendant,  its  agents  and  servants,  be- 
came and  was  wholly  lost  to  the  said  plaintiff;  to  the  damage  of 
the  said  plaintiff  $ 

Wherefore    said  plaintiff  prays  judgment  against  said  defendant 
for  said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

W  T,  Attorney  for  Plaintiff. 

Vide  Wyld  v.  Pickford,  8  Mees.  &  W.  443 ;  Pozzie  v.  Shipton,  8 
Ad.  &  El.  963.  ■  fc 

This  form  is  copied  from  the  report  of  the  case  of  Marshall  v. 
The  York,  Newcastle  and  Berwick  Eailway  Co.,  7  Eng.  L.  &  Eq. 
519.  The  plaintiff  was  a  servant  of  Lord  Adolphus  Vane,  who 
paid  his  fare.  A  question  was  made,  whether  an  averment  that 
the  fare  was  paid  by  him  would  be  a  variance,  and  the  court  held  it 
would  not.  I  have  suggested  an  averment  to  correspond  with  the 
*'  fact,  if  the  fare  is  paid  by  another.  But  I  don't  see  any  force  in 
the  objection  ;  if  paid  by  another,  it  was  paid  for  him  by  such 
other  and  so  paid  by  himself;  nor  can  it  make  any  difference,  if 
the  person  paying  was  bound  to  pay  for  him,  as  it  was  the  same, 
as  though  he  paid  for  himself.  The  frame  of  this  petition,  say  the 
court,  is  not  founded  upon  a  contract,  but  is  to  be  regarded  as  an 


FORMS   OF   PETITIONS.  511 


action  of  tort  against  the  defendant  as  a  carrier,  on  the  custom  of 
the  realm.  It  was  also  objected  that  there  Avas  no  contract  between 
plaintiff  and  defendant,  since  his  master,  Lord  Vane,  made  all  the 
contract  there  was  made ;  but  so  far  as  plaintiff  was  concerned, 
Lord  Vane  was  his  agent  to  make  the  contract  for  the  journey. 
If  A  takes  B  as  his  servant,  and  agrees  to  pay  his  fare  on  the 
journey.  A  is  B's  agent  for  that  purpose,  so  that  the  contract  is 
with  the  passenger  and  not  with  the  party  paying.  A  goes  and 
buy-  several  tickets  for  himself  and  others;  it  would  be  strange,  if 
these  others,  had  in  law  no  contract  for  carriage  with  the  com- 
pany. This  is  often  done  ;  and  the  contract  is  with  each  severally. 
The  company  never  inquire  who  is  to  use  the  tickets. 

183.    ENGINEER   V.  RAILROAD    COMPANY    FOR   INJURY    BY    NEGLECT   OF 
A    SERVANT    OF    SAID    COMPANY. 

The  said  A  B,  plaintiff,  complains  of  the  Little  Miami  Railroad 
Company,  defendant,  for  that,  before  and  at  the  time  of  the  com- 
mitting of  the  grievances  by  the  said  defendant,  hereinafter  men- 
tioned, the  said  defendant  was  possessed  of  a  certain  railway,  run- 
ning from  Cincinnati  to  Springfield,  in  said  State  of  Ohio,  and  of 
two  locomotives,  with  the  trains  of  railway  ears  thereto  respectively 
attached;  the  one  of  said  locomotives  and  the  train  thereto  at- 
tached, running  from  said  Cincinnati  to  said  Springfield,  and  back 
again  the  ensuing  day  thereafter,  and  the  other  thereof,  running 
from  said  Springfield  to  said  Cincinnati,  and  back  again  the  ensu- 
ing day,  which  said  locomotives,  with  their  respective  trains,  were 
used  and  accustomed  to  meet  and  safely  pass  each  other  at  Plain- 
villc,  by  the  express  direction  and  arrangement  of  the  said  defend- 
ant; and  the  said  plaintiff,  at  and  before  the  time  of  the  injury 
hereinafter  mentioned,  was  employed  by  said  defendant  as  an 
engineer  upon  one  of  the  said  locomotives,  at  and  for  a  certain 
hire  and  reward  agreed  upon  by  the  parties  in  that  behalf,  and 
was  accustomed  to  stop  the  said  Last-mentioned  locomotive  at  Plain- 
ville  aforesaid,  under  the  instruction  by  him  received  from  the  said 
defendant,  through  its  duly  appointed  agents  and  servants,  and 
there  safely  to  pass  the  said  other  locomotive  as  aforesaid;  and 
that,  by  reason  of  the  premises,  it  became  the  duty  of  the  said  de- 
fendant, by  its  agent  -  and  servants,  to  give  the  said  plaintiff  timely 
and  due  notice  of  any  change  in  the  place  of  meeting  and  passing 
of  the  said  locomotives  and  their  respective  trains;  yet  the  said 
defendant,  by  it-  agents  and  servants,  not  regarding  its  said  duty, 
did.  by  its  agents  and  servants,  on  the        day  of  ,  \.  d.  18     , 


512  FORMS   OP   PETITIONS. 


change  the  place  of  meeting  und  passing  of  said  locomotives,  with 
their  respective  trains,  from  said  Plainville  to  Columbia,  on  the 
line  of  said  railroad,  and  directed  said  change  to  be  carried  into 
effect  on  the  day  next  following  the  said         day  of  ,  a.  d. 

18  ,  and  the  said  defendant,  by  its  agents  and  servants,  wholly 
neglected  and  failed  to  give  the  said  plaintiff  notice  of  the  said 
change  in  the  place  for  the  passing  of  said  locomotives,  with  their 
respective  trains;  whereby,  whilst  the  said  plaintiff  was  proceed- 
ing, in  his  capacity  of  engineer  as  aforesaid,  on  one  of  said  locomo- 
tives, with  the  train  thereto  belonging,  from  said  Cincinnati  to 
said  Springfield,  to  wit,  on  the         day  of  ,  A.  d.  18     ,  accord- 

ing to  the  directions  before  that  time  given  to  the  said  plaintiff  by 
the  agents  and  servants  of  the  said  defendant,  and  of  the  change 
of  which  the  said  plaintiff  then  had  no  notice,  between  Columbia 
and  Plainville  aforesaid,  the  other  locomotive,  with  its  train,  com- 
ing from  said  Springfield  toward  said  Cincinnati,  unavoidably  ran 
against  and  came  in  collision  with  the  said  locomotive,  on  which 
the  said  plaintiff  was,  in  his  said  capacity  of  engineer,  and  violently 
crushed  the  same,  whereby  the  said  plaintiff  was  then  and  there 
Severely  scalded,  bruised,  hurt,  and  wounded,  and  in  consequence 
thereof  became  sick,  sore,  lame,  and  disordered,  and  so  remained 
for  the  space  of  months  thence  next  ensuing;  and  was  put  to 
great  expense  in  and  about  the  endeavoring  to  cure  the  said  hurts, 
bruises,  wounds,  and  fractures,  and  did  expend  therefor  the  sum 
of  $  ,  and  also,  during  all  that  time,  was  unable  and  thereby 
prevented  from  attending  to  his  ordinary  business,  and  lost  all  the 
wages  he  otherwise  would  have  earned  as  such  engineer,  to  wTit, 
the  sum  of  $         ;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained. 

This  is  substantially  a  copy  of  the  declaration  in  the  case  of 
Little  Miami  Railroad  Co.  v.  Stevens,  20  Ohio,  415.  If  the  case  is 
to  be  followed,  it  may  be  useful  to  the  profession.  The  case,  how- 
ever, is  one  of  purely  judicial  legislation ;  the  authorities  being 
nearly  all  against  the  decision.  See  the  cases  referred  to  in  the 
dissenting  opinion  of  Spaulding,  J.  The  same  doctrine  has  since 
been  reaffirmed  in  New  York,  Massachusetts,  South  Carolina,  and 
England.  Coon  v.  S.  &  IT.  E.  E.  Co.,  1  Seldcn,  492;  Hayes  v.  W. 
E.  E.  Co.,  3  Cush.  270 ;  Skip  v.  Eastern  E.  E.  Co.,  24  Eq.  &  L. 
396;  Wigmore  v.  Jay,  5  Exch.  354;  Hutchinson  v.  York  &  New- 
castle E.  E.  Co.,  5  Exch.  343.     The  same  doctrine  was  applied  to 


FORMS   OP   PETITIONS.  513 


hands  in  a  manufacturing  company.  Albro  v.  Agawam  Canal  Co., 
6  Cush.  75.  The  next  form  shows  when  the  company  are  liable; 
and  it  may  be  that  it  can  be  maintained  that  the  change  of  time 
was  a  corporation  act,  for  which  the  company  maybe  liable.  The 
distinction  is  nice,  but  yet  real.  Where  the  agent  is  following  the 
instructions  of  the  company,  and  through  negligence  injures 
another,  then  the  company  is  not  liable;  but  when  the  accident 
happens,  not  from  the  negligence  of  the  one  doing  the  act,  but 
from  an  act  of  negligence  traceable  to  the  company,  then  the  com- 
pany is  liable.  In  the  Stevens  case,  this  change  of  time  may  be 
considered  a  corporation  act ;  if  it  was,  then  it  was  the  duty  of 
the  company  to  give  the  "notice ;  and  having  failed  to  give  it,  it 
was  responsible  for  the  accident.     1  McMullen,  385.    * 

The  question  involved  in  the  case  of  Little  Miami  E.  E.  Co.  v. 
Stevens,  20  Ohio,  415,  has  been  under  consideration  in  two  subse- 
quent cases.  In  C.  C.  &  C.  E.  E.  Co.  v.  Keary,  3  Ohio  St.  201,  it 
was  held  that  where  a  railroad  company  places  one  person  in  its 
employ  under  tin-  direction  and  control  of  another  also  in  its  em- 
ploy, such  railroad  company  is  liable  for  an  injury  sustained  by 
the  person  placed  in  subordinate  situation,  by  the  negligence  of 
his  superior.  In  the  Pitts.,  Ft,  W.  &  Chicago  E.  E.  Co.  v.  Devin- 
ncy,  17  Ohio  St.  197,  the  court  held  that  where  in  a  collision  of 
two  trains  on  same  road,  by  the  negligence  of  the  conductor  of  one 
of  the  trains  a  brakesman  on  the  other  train  was  injured,  the  com- 
pany was  not  liable. 

Brinkerhoff,  J.,  in  this  case  said:  "A  comprehensive  summary 
of  the  branch  of  the  law  applicable  to  this  question,  as  settled  by 
cases  BO  uniform  and  numerous  that  it  is  needless  to  cite  them,  in 
England.  New  York.  Massachusetts,  Pennsylvania,  and  most  of  the 
other  states  of  the  Union,  is  thus  stated  by  Eead,  J.,  delivering 
the  opinion  of  the  Supreme  Court  of  Pennsylvania,  in  Caldwell  y. 
Brown,  <i  Am.  L.  Register,  N.  S.  752  :  'A  servant,  by  entering  into 
his  master's  service,  assumes  all  the  risks  of  that  service,  which 
the  master  can  not  control,  including  those  arising  from  the  negli- 
gence of  his  fellow-servants,  in  case  of  an  injury  to  one  servant 
by  the  negligence  of  another,  it  is  immaterial,  whether  he  who 
causes,  and  he  who  sustains  the  injury,  arc  or  are  not  engaged  in 

the   same   or   similar   labor,   Or  in    the   position    of  equal   grade.  Off 

authority.  If  they  are  acting  together,  under  one  master,  in 
carrying  out  a  common  object,  they  are  fellow-servants.  The 
master,  indeed.  is  hound  to  use  ordinary  care  in  providing  suitable 

vol..  i     :;:; 


514  FORMS   OP   PETITIONS. 


structures,  engines,  tools,  and  apparatus,  and  iu  selecting  proper 
servants,  and  is  liable  to  other  servants  in  the  same  employment, 
it  they  are  injured  by  his  own  neglect  of  duty.  But  it  makes  no 
difference  whether  the  master  is  an  individual,  or  a  corporation; 
in  either  ease  he  is  responsible  to  his  own  servants  for  his  own 
neglect,  but  not  for  that  of  their  fellow-servants.'  But  on  this  gen- 
eral doctrine,  a  single  exception  has  been  ingrafted  in  this  state; 
first,  by  a  divided  court  in  Little  Miami  B.  B.  Co.  v.  Stevens,  20 
Ohio,  415,  and  afterward  by  a  full  court  in  C.  C.  &  C.  B.  B.  Co.  v. 
Keary,  3  Ohio  St.  201,  and  thenceforward  recognized  by  this  court 
in  subsequent  eases."  The  court  admit  the  Ohio  rule  is  in  opposi- 
tion to  all  authority  outside  of  Ohio,  saVe  a  single  case  in  Wiscon- 
sin. Chamberlain  v.  Mil.  &  Miss.  B.  B.  Co.,  11  Wis.  239.  The 
English  cases  are  uniform  on  this  question.  In  Tunney  v.  Mid- 
land B,  W.  Co.,  L.  B.,  1  C.  B.  291,  Erie,  C.  J.,  says  :  "  The  rule  has 
been  settled  by  a  series  of  cases  beginning  with  Priestly  v.  Fowler, 
3  Mees.  &  Wels.  1,  and  ending  with  Morgan  v.  The  Vale  of  Neath 
B.  B.  Co.,  L.  B,,  1  Q.  B.  149,  that  a  servant,  when  he  engages  to 
serve  a  master,  undertakes,  as  between  himself  and  his  master,  to 
run  all  the  ordinary  risks  of  the  service,  including  the  risks  of 
negligence  upon  the  part  of  a  fellow-servant  when  he  is  acting  in 
the  discharge  of  his  duty  as  servant  of  him  who  is  the  common 
master  of  both."  Walker  v.  S.  Eastern  B.  B.  Co.,  2  II.  &  C.  102 ; 
Lovegrove  v.  The  London  &  Brighton  B.  B.  Co.,  16  C.  B.,  N.  S. 
609  ;  Gilshaunon  v.  Stony  Brook  B.  B.  Co.,  10  Cush.  228;  Farwell 
v.  B.  &  W.  B.  B,  Co.,  4  Metcalf,  49;  Bartonshill  Coal  Co.#y.  Beid, 
3  Macq.  266 ;  Bartonshill  Coal  Co.  v.  McGuire,  3  Macq.  300  ;  Wig- 
got  v.  Fox,  11  Exch.  832  ;  Senior  v.  Ward,  1  E.  &  E.  391 ;  Mad 
Biver  &  Lake  Erie  B.  B.  Co.  v.  Barber,  5  Ohio  St.  541. 

184.    ENGINEER   V.    RAILROAD    COMPANY    FOR    INJURY   FROM    USING    A 
CONDEMNED    LOCOMOTIVE. 

The  said  A  B,  plaintiff,  complains  of  the  Western  Bailroad  Cor- 
poration, for  that  the  said  defendant,  before  and  at  the  time  of  the 
committing  of  the  grievances  hereinafter  mentioned,  was  the  owner 
of  a  certain  railroad,  and  of  a  carriage  commonly  called  a  locomo- 
tive, moved  and  propelled  by  steam,  and  by  the  said  defendant 
used  and  employed  in  carrying  and  conveying  passengers  and 
goods,  {or  may  not  this  be  preferred — hauling  trains  of  cars,  holding 
and  containing  passengers  and  goods,)  upon  and  over  the  said  rail- 
road of  the  said  defendant,  from  Creenbush,  in  the  county  of 
Albany,  to  Boston,  in  the  State  of  Massachusetts,  and  intermediate 


FORMS   OP   PETITIONS.  515 


places;  that  the  said  plaintiff,  on  the  first  day  of  December,  a.  d. 
18-45,  at  Greenbush  aforesaid,  at  the  time  of  the  committing  of  the 
said  grievances,  was  in  the  employment  of  the  said  defendant,  as 
fireman  upon  said  locomotive,  so  moved  and  propelled  by  steam  as 
aforesaid ;  and  that  it  then  and  there  became,  and  was  the  duty  of 
the  said  defendant  to  procure  a  good,  safe,  and  secure  locomotive. 
with  good,  safe,  and  secure  machinery  and  apparatus,  to  move  and 
propel  the  same  by  means  of  steam  as  aforesaid ;  yet  the  said  de- 
fendant, not  regarding  its  duty  in  that  behalf,  conducted  so  care- 
lessly, negligently,  and  unskillfully,  that,  by  and  through  the  care- 
lessness, negligence,  and  default  of  the  said  defendant  and  its 
servants,  in  providing,  using,  and  suffering  to  be  used,  an  unsafe, 
defective,  and  insecure  locomotive,  and  for  want  of 'due  care  and 
attention  to  its  duty  in  that  behalf,  on  the  said  day  of  afore- 

said, and  whilst  the  said  locomotive  was  in  the  use  and  service  of 
the  said  defendant  upon  the  said  railroad,  and  whilst  the  said 
plaintiff  was  on  the  same,  in  the  capacity  aforesaid  for  the  said  de- 
fendant, the  boiler  connected  with  the  engine  of  the  said  locomo- 
tive, by  reason  of  the  unsafeness,  defectiveness,  and  insecurity 
thereof,  exploded;  whereby  large  quantities  of  steam  and  water 
escaped  therefrom  and  fell  upon  the  said  plaintiff,  by  which  he  was 
greatly  scalded,  and  injured,  etc.  (state  any  special  damages,  and 
conclude  as  in  the  preceding  forms.) 

This  is  a  copy  of  the  declaration  or  petition  in  the  case  of  Keegan 
v.  The  Western  Railroad  Corporation,  4  Selden,  175.  The  form 
might  be  somewhat  improved  possibly  and  shortened  j  but  it  con- 
tains all  that  is  accessary  to  make  a  good  case  on  paper. 

In  this  case,  it  was  held  that  the  defendant  was  liable,  on  the 
ground  that  the  neglect  was  that  of  the  corporation,  and  not  of  its 
servants,  and  so  did  not  come  within  the  principle  established  in 
Coon  r.  S.  &  U.  R.  It.  Co.,  1  Seld.  1!>2.  The  locomotive  in  this  case 
had  been  reported  as  insufficient  for  service  by  the  engineers,  but 
the  corporation  continued  to  use  it ;  hence  it  was  the  default  of  the 
corporation,  and  not  of  its  servants.  These  had  done  their  duty  in 
reporting  its  insufficiency.  The  courl  says,  as  to  the  cases  cited 
where  railroads  had  not  been  held  liable  for  an  injury  to  one 
servant,  arising  from  the  negligence  of  another:  '-They  are  ap- 
plicable only  where  the  injury  complained  of  happened  without 
any  actual  limit  or  misconduct  of  the  principal,  either  in  the  act 
which  caused  the  injury,  or  in  the  selection  and  employment  of  the 
agenl  by  whose  fault  it  did  happen.     Whenever  the  injur)-  results 


516  FORMS   OP   PETITIONS. 


from  the  actual  negligence  or  misfeasance  of  the  principal,  he  is 
liable  as  well  in  the  case  of  one  of  his  servants  as  in  any  other.  But 
where  the  injury  results  from  the  actual  fault  of  a  competent  and 
oareful  agent,  (as  may  sometimes  happen,)  the  fault,  when  the  in- 
jury falls  upon  another  servant,  will  not  be  imputed  to  the  princi- 
pal, as  it  will  where  the  injury  falls  upon  a  third  person;  as,  for 
instance,  on  a  passenger  on  a  railroad.  In  the  case  of  passengers, 
the  actual  fault  of  the  agent  is  imputed  to  the  principal  on  grounds 
of  public  policy;  in  the  case  of  a  servant  it  is  not.  The  reason  for 
this  distinction  may  be  found  in  the  cases  cited  by  appellant's 
counsel.  But  it  is  unnecessary  to  state  them  here,  because  the  in- 
jury in  the  present  case  is  found  to  have  resulted  directly  from  the 
negligence  or  misconduct  of  the  defendants  themselves,  in  continu- 
ing to  use  an  engine  having  a  defective  and  dangerous  boiler,  after 
notice  of  its  dangerous  condition." 

The  question,  what  would  be  the  effect  of  a  knowledge  by  the 
plaintiff  of  the  defective  character  of  the  boiler  upon  his  right  to 
recover,  is  left  an  open  one ;  though  the  language  of  the  court 
would  seem  to  imply  that,  if  he  had  this  knowledge,  it  would 
change  his  rights.  It  should  not  certainly.  The  company  would 
have  a  right  to  discharge  a  servant  who  refused  to  go  on  its  order, 
and  hence  it  ought  to  be  responsible  to  the  same  extent  as  if  the 
defect  of  the  boiler  was  not  known  to  the  plaintiff.     5  Ohio  St.  541. 

185.    MAIL-AGENT   V.    RAILROAD    COMPANY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant  is  a  corporation,  engaged  in  carrying 
passengers  and  freight  from  to  ,  by  railroad ;  and  that 

the  said  defendant  had  entered  into  a  contract  with  the  United 
States,  by  which,  for  a  stipulated  price  and  period,  the  said  defend- 
ant agreed  to  transport,  upon  the  said  railway  of  the  said  defend- 
ant, and  in  the  cars  thereof,  the  mail  and  mail-agent  of  the  said 
United  States ;  and  the  said  plaintiff  saith  that  he  was  the  mail- 
agent  of  the  said  United  States  on  the  said  route,  and  in  the  em- 
ploy of  the  same;  and  that,  on  the  day  of  June,  a.  d.  18  ,  the 
said  defendant,  in  pursuance  and  in  consideration  of  the  said  con- 
tract of  the  said  defendant  with  the  said  United  States,  received 
the  said  plaintiff  as  such  mail-agent  into  one  of  the  cars  of  the  said 
defendant,  so  running  on  the  railway  aforesaid ;  and  the  said 
plaintiff,  for  the  purpose  and  consideration  aforesaid,  became  and 
was  a  passenger  in  said  cars,  to  be  thereby,  and  by  the  said  de- 
fendant, safely,  and  with  due  care  and  caution,  carried  and  con- 


FORMS   OF   PETITIONS.  517 


veyed  from  the  said  town  (or,  city)  of  to  the  said  town  (or, 

city)  of  ,  and  which  the  said  defendant  then  undertook  and 

was  bound  to  do ;  and  yet  the  said  defendant,  not  regarding  the 
duty  of  the  said  defendant  in  that  behalf,  did  not,  nor  would  safely 
and  with  due  care  and  skill,  carry  the  said  plaintiff  as  such  pas- 
senger, but  on  the  contrary  thereof,  so  carelessly,  unskillfully,  and 
improperly  managed  in  that  behalf,  that  afterward,  and  while  the 
said  car  was  proceeding  from  the  said  town  (or,  city)  of  to  the 

said  town  (or,  city)  of  ,  and  while  the  said  plaintiff  was  such 

passenger  therein,  the  said  car,  by  and  through  .the  defectiveness 
and  insufficiency  of  the  same,  and  of  the  construction  and  material 
thereof,  or  of  the  engine  and  tender,  or  of  some  one  of  the  cars  of 
the  train  to  which  the  said  car  was  attached,  and  by  and  through 
the  carelessness,  unskillful ness,  and  improper  conduct  and  default 
of  the  said  defendant,  and  the  said  defendant's  officers,  agents,  and 
servants  in  that  behalf,  and  in  the  running,  managing,  and  con- 
ducting of  the  car,  and  train,  and  engine  drawing  the  same,  was 
broken  in  pieces  and  thrown  off  the  railroad  track,  and  thereby 
then  and  there  the  ribs  and  bones  of  the  said  plaintiff,  and  the 
parts  adjacent  thereto,  became  and  were  dislocated,  bruised, 
fractured,  and  broken,  and  he,  the  said  plaintiff,  was  otherwise 
greatly  injured  ;  to  the  damage  of  the  said  plaintiff  $ 

The  said  plaintiff  therefore  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  as  aforesaid  sus- 
tained. 

This  is  a  copy  of  the  petition  in  the  case  of  Nolton  v.  The  West- 
ern Railroad  Corporation,  10  Pr.  97  ;  and  that  was  copied  from  the 
declaration  in  the  case  of  Oollett  v.  The  London  and  Northwestern 
Railway  Co.,  6  hmg.  L.  &  Eq.  305.  In  both  these  cases  it  is  held 
that  the  company  are  liable  for  an  injury  to  a  mail-agent,  as  well 
as  to  any  other  passenger.  Vide  also  Levy  v.  Langridgc,  4  Mees. 
cV  W'elsb.  337. 

18G.    AGAINST    RAILROAD   FOR   KILLING   CATTLE. 
The  said  A  B,   plaintiff,  complains  of  the  said  CD,  defendant, 
for  that  the  said  defendant,  before  and  at  the.  time  of  the.  commit- 
ting of  the  grievances  hereinafter  mentioned,  to  wit,  on  the 
day  of  ,  A.  D.  18     ,  was  the  owner  and   occupier  of  a   certain 

railroad  leading  from  to  ,  and  of  certain  cars  and  a 

locomotive  running  thereon,  and  the  said  plaintiff  further  saith 
that  lie  was  then  the  owner  and  possessed  of  certain  cattle,  to  wit, 


518  FORMS   OF   TETITIONS. 


of  five  cows  and  two  oxen  (or  any  other  stock,  as  the  case  may  be,) 
of  the  value  of  $  ,  and  which  cows  and  oxen  casually,  and 

without  the  fault  of  the  said  plaintiff,  strayed  in  and  upon  the 
track  and  ground  occupied  by  the  railroad  of  the  said  defendant; 
and  the  said  plaintiff  further  saith  that  the  said  defendant,  by  its 
agents  and  servants,  not  regarding  its  duty  in  that  respect,  so  care- 
lessly and  negligently  ran  and  managed  the  said  locomotive  and 
cars  that  the  same  ran  against  and  over  the  said  cows  and  oxen  of 
the  said  plaintiff,  and  killed  and  destroyed  the  same;  to  the  dam- 
age of  the  said  plaintiff  $ 

The  said  plaintiff  therefore  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  S  ,  his  damages  so  as  aforesaid 
sustained. 

The  law  has  been  generally  settled  that  railroad  companies  are 
not  liable  for  injury  to  cattle  killed  while  trespassing  on  the  road. 
The  neglect  on  the  part  of  the  plaintiff,  in  suffering  his  cattle  to  be 
at  large,  precludes  him  from  recovering,  as  the  first  fault  is  his. 
Munger  v.  Tonawanda  E.  E.  Co.,  4  Comst.  349;  Clark  v.  S.  &  U. 
E.  E.  Co.,  11  Barb.  S.  C.  112;  Vandorgrift  v.  Eastern  E.  E.  Co.,  29 
Maine,  307;  Tonawanda  E.  E.  Co.  v.  Munger,  5  Denio,  255;  Town 
v.  Cheshire  E.  E.  Co.,  1  Foster,  (N.  H.)  363;  Quimby  v.  Vermont 
Central  E.  E.  Co.,  23  Vt.  393;  Trow  v.  Vermont  Central  E.  E.  Co., 
21  lb.  487;  Brooks  v.  N.  Y.  &  E.  E.  E.  Co.,  13  Barb.  524.  In 
Michigan  it  has  been  hold,  it  is  believed,  that  an  owner  of  cattle 
killed  could  not  recover,  even  if  killed  by  negligence.  In  the  case 
of  Iverwhacker  v.  Cleveland,  Columbus  and  Cincinnati  E.  E.  Co.,  3 
Ohio  St.  172,  it  seems  to  have  been  intimated  that  the  railroad  com- 
pany would  be  liable  in  any  case;  since  in  Ohio  no  person  was 
bound  to  fence  against  cattle.  This  last  doctrine  is  in  direct  con- 
flict with  repeated  decisions  made  in  Common  Pleas  and  Supreme 
Court,  on  the  circuit,  as  is  known  to  us.  This  case  was  rightly 
decided,  since  the  court  below  held  the  defendant  was  not  liable 
even  for  a  careless  killing.  Some  cases  go  that  far,  but  they  are 
clearly  wrong.  In  Cleveland,  Columbus  and  Cincinnati  E.  E.  Co. 
v.  Elliot,  4  Ohio  St.  476,  the  Supreme  Court  qualified  the  doctrine 
stated  in  the  previous  case,  holding  the  railroad  only  to  diligence 
in  running  its  train.  If  stock  are  on  the  track,  as  that  is  only  a 
remote  cause  of  the  injury,  the  owner  can  recover,  if  his  cattle  have 
been  killed  by  negligence.  Where  the  owner  of  cattle  is  bound 
to  fence  against  the  track,  ho  can  not  recover  for  cattle  killed  on 
it,  unless  it  was  done  willfully,  or  by  gross  carelessness.     4  Ohio 


FORMS   OP   PETITIONS.  519 


.St.  424.  Even  if  the  plaintiff  is  in  such  case  guilty  of  violating 
his  contract  in  not  erecting  the  fence,  still  the  railroad  company 
has  no  right  willfully,  or  hy  gross  negligence,  to  destroy  his  prop- 
erty. He  would  he  liable  to  the  company  for  any  injury  sustained 
from  a  refusal  on  his  part  to  fulfill  his  contract. 

The  case  in  3  Ohio  St.  172-  was  rightfully  decided,  since  the 
court  below  clearly  charged  the  law  wrong,  when  it  said  that  the 
defendant  was  not  bound  to  exercise  any  care  whatever  to  avoid 
killing  the  cattle.  Some  of  the  cases  go  that  far,  but  they  arc 
clearly  wrong.  These  cases  assume  that  where  there  is  neglect 
on  the  part  of  the  plaintiff  he  can  not  recover.  This  is  true,  where 
that  neglect  is  connected  with  the  immediate  injury  ;  as  where  the 
road  is  out  of  repair,  or  a  nuisance  is  erected,  a  part}''  must  avoid 
it  if  he  can  ;  he  can  not  be  permitted  voluntarily  to  cast  himself 
upon  an  obstruction,  where  he  can  by  ordinary  care  avoid  it, 
Hogg  v.  Zanesville  C.  &  M.  Co.',  5  Ohio,  410,  418.  But  the  negli- 
gence in  these  cases  is  not  of  that  character;  it  has  nothing  to  do 
with  the  immediate  injury,  and  the  rule,  therefore,  does  not  apply. 
The  rule  is  very  well  stated  in  Hess  v.  Lupton,  7  Ohio  (pt.  1,)  216. 
If  one  leave  an  open  pit  in  an  uninclosed  lot  in  a  town,  into  which 
his  neighbor's  beasi  falls  and  perishes,  an  action  lies;  but  if  such 
an  accident  happen  in  a  pit  left  open  in  a  place  remote  from  the 
haunts  of  cattle,  no  suit  is  sustainable,  for  the  risk  of  doing  mis- 
chief is  so  small  that  the  exposure  is  not  negligent.  Or,  to  put  the 
in  another  form  :  has  one  a  right  to  kill  his  neighbor's  cattle 
because  he  finds  them  trespassing  on  his  inclosuro?  Wo  think  no 
case  can  hi'  found  for  such  a  proposition.  If  an  individual  has 
not  the  right,  no  more  has  a  railroad  company.  Hence,  it  is 
clear  that  a  railroad  company  are  hound  to  exercise  cvvry  reason- 
able care  to  avoid  killing  cattle  found  on  their  track.  Ifthe,oi0ner 
were  to  turn  his  cattle  on  the  track,  then  he  ought  not  to  recover, 
because  it  is  his  own  fault,  or  rather  crime,  in  exposing  them  to 
the  danger;  and  to  allow  him  lo  recover  under  such  circumstances 
would  he  to  pay  a  premium  for  a  willful  violation  of  duty,  at  the 
hazard,  too,  of  destroying  the  lives  of  those  traveling  upon  rail- 
roads. The  safety  of  the  traveling  public  is  a  matter  of  as  much 
importance  as  the  value  of  cattle;  and  to  allow  cattle  to  he  on 
tl,,-  track  of  a  railroad  is  a  crime,  since  it  endangers  the  lives  of 
those  who  work  ami  travel  on  it.  To  enable  a  party  to  recover, 
the  cattle  musl  bave  strayed  on  the  road;  the  negligence,  if  any, 
,,,,1-t  be  remote;  and  then  the  agents  of  the  company  must  avoid 
injuring  them,  if  it  can    be  done   hy  the   use  oi  ordinary  cure  and 


520  FORMS    OF    FETITIONS. 


diligence.  Here  again  the  public  have  an  interest;  as  in  running 
over  them  the  train  is  liable  to  be  thrown  oil'  the  track;  hence, 
every  inducement  should  be  held  out  to  prevent  a  collision  ;  and  a 
liability  on  the  part  of  the  company  and  the  agents,  to  pay  for 
cattle  killed,  will  tend  to  induce  caution  and  care  on  the  part  of 
conductors  and  engineers.  And  it  seems  that  this  doctrine  has 
been  maintained  in  some  cases.  Quimby  v.  Vermont  Central  E. 
B.  Co.,  23  Vt.  393  ;  Faweett  v.  The  York  &  N.  M.  E.  E.  Co.,  2  Eng. 
J..  cV  Eq.  280. 

Where,  however,  the  law  requires  a  railroad  company  to  keep 
up  cattle-guards  and  fences,  and  they  neglect  to  do  so,  they  are 
liable,  even  if  the  cattle  are  abroad  by  the  negligence  of  the  owner, 
under  such  circumstances  as  to  render  their  access  to  the  road 
probable.  Faweett  v.  The  York  and  North  Midland  E.  E.  Co., 
2  Eng.  Law  &  Eq.  2S9  ;  Quimby  v.  The  Yermt.  Central  E.  E.  Co., 
23  Yt.  393;  Trow  v.  Same,  24  lb.  487.  So  where  the  owner 
of  land  agreed  to  keep  up  a  fence,  as  well  as  the  railroad,  he  can 
not  recover  for  injury  to  his  cattle  if  he  fails  to  do  so,  as  well  as 
the  railroad  company,  unless  there  is  gross  negligence  on  the  part 
of  the  railroad  agents.  Talmadge  v.  E.  &  S.  E.  E.  Co.,  13  Barb. 
493 ;  Suydam  v.  Moore,  8  Barb.  S.  C.  358  ;  Waldron  v.  E.  &  S.  E. 
E.  Co.,  lb.  390.  But  if  the  owner  permits  his  cattle  to  run  upon 
the  road,  he  can  not  recover,  even  if  the  company  is  required  to 
keep  up  the  fence.  Clarke  v.  S.  &  U.  E.  E,  Co.,  11  Barb.  S.  C.  112 ; 
5  Kan.  167. 

Such  we  believe  to  be  the  correct  view  of  the  law  ;  and  it  may 
be  briefly  summed  up  in  the  following  propositions  : 

Where  the  company  is  bound  to  fence,  and  has  not  done  it, 
then  it  is  liable  in  all  cases,  unless  the  owner  knowingly  permits 
his  cattle  to  be  upon  the  road  ;  and  then,  if  they  are  killed  by 
gross  negligence.  Where  the  company  is  not  required  to  fence, 
then  it  is  still  liable  where  the  cattle  escape  and  stray  upon  the 
road,  without  the  fault  of  the  owner,  if,  by  the  use  of  ordinary 
care  and  caution,  the  accident  might  have  been  avoided  ;  but 
where  the  owner  allows  his  cattle  to  run  at  large,  under  such  cir- 
cumstances as  render  it  probable  that  they  will  stray  upon  the 
road,  then  he  can  not  recover  at  all ;  because  to  permit  him  to  re- 
cover, would  be  to  hold  out  a  reward  to  a  negligence  endangering 
the  lives  of  those  who  travel  upon  these  thoroughfares.  If  the 
engineer  kills  them  by  carelessness,  then  both  parties  have  been 
guilty  of  an  act  which  ought  to  be  punished  as  a  crime  ;  since  its 
almost  inevitable  result  is  to  endanger  and  destroy  human  life.    A 


FORMS   OP   PETITIONS.  521 


person  who  lays  a  rail  on  the  track  is  a  criminal  by  law ;  and 
why  ?  Because  he  willfully  endangers  human  life.  A  person  who 
knowingly  permits  cattle  to  stray  upon  the  track  also  endangers 
human  life  ;  and  why  should  he  not  be  punished  in  degree  ?  But 
to  permit  him  to  recover,  if  his  cattle  are  killed,  would  be  to  re- 
ward him  for  his  criminal  negligence  in  endangering  the  lives  of 
others.  If  the  case  lately  decided  by  our  court  goes  so  far  as  to 
permit  one  to  recover  under  such  circumstances,  then  it  is  entitled 
to  no  respect,  even  in  Ohio.  5  Ohio  St.  541  ;  6  lb.  105 ;  8  lb.  239, 
570. 

187.    AGAINST    A   RAILROAD    AS    A   COMMON    CARRIER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the         clay  of  ,  A.  d.  18     ,  owned 

and  used  a  certain  railroad,  leading  from  the  city  of  Troy  to  the 
village  of  Ballston.  connected  with  the  Schenectady  and  Saratoga 
Eailroad,  and  the  Washington  and  Saratoga  Bailroad,  and  owned, 
and  used,  and  run  upon  the  road  of  the  said  defendant,  in  connec- 
tion with  the  railroad  of  the  said  S.  and  S.  Bailroad  and  the  said 
W.  and  S.  Bailroad.  passenger  and  baggage  cars,  for  the  carriage 
of  passengers  and  their  baggage  to  and  from  Whitehall  to  the  said 
city  of  Troy  for  hire  ;  and  the  said  plaintiff  saith  that,  on  the 
day  of  ,  A.  n.  18     ,  at  said  Whitehall,  she  paid  to  the  said  de- 

fendant the  fare  for  the  passage  of  herself  and  her  children,  and 
baggage,  from  the  said  village  of  Whitehall  to  the  said  city  of 
Troy;  and  that  her  said  baggage  consisted  of  four  parcels,  con- 
taining clothing  and  bedding,  and  that  one  of  said  parcels  was  a 
trunk,  and  contained,  with  certain  clothing,  eighteen  gold  sover- 
eigns, provided  for  the  traveling  expenses  of  the  said  plaintiff 
and  her  said  children;  and  that  the  said  plaintiff  delivered  the 
Said  baggage  to  the  agents  of  the  said  defendant  at  said  Whitehall, 
and  the  said  defendant,  by  its  agents,  there  received  the  same,  and 
placed  the  same  in  a  baggage-car  of  said  defendant,  to  be  carried 
to  the  said  city  of  Troy  ;  and  the  said  plaintiff  avers  that  she  and 
her  said  children  came  to  the  said  city  of  Troy  in  a  passenger-car 
attached   to.  and   drawn  with,  the  said   baggage-Car  over   the   said 

railroads  from  the  said  town  of  Whitehall  to  the  said  city  of  Troy  ; 
y,-t  the  said  defendant,  by  its  servants,  so  negligently,  carelessly, 
and  improperly  conducted  itself  in  this  behalf,  and  in  the  carry- 
ing and   taking  care   of  said    baggage,  that    two   of  the  said  pack- 

;iL.' —  the  said  trunk'  with  the  said  sovereigns  therein, and  another 
package — through  the  negligence  and  carelessness  of  the  Baid  de- 


522  FORMS   OF    PETITIONS. 


fendant,  became  and  was  wholly  lost  to  the  said  plaintiff;  to  her 
damage,  as  she  avers,  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  sum  of  $ 

This  is  prepared  from  the  petition  in  the  case  of  Hart  v.  The 
Rensselaer  and  Saratoga  IL  E.  Co.,  4  Selden,  37.  It  shows  the  lia- 
bility of  companies  joining  and  running  over  roads  belonging  to 
several  companies.  It  may  be  useful  at  times  to  have  the  reference 
and  the  form.     10  Ohio  St.  65. 

In  the  ease  of  Fenner  v.  Buffalo  and  State  Line  E.  E.  Co.,  44  N. 
Y.  505,  the  liabilities  of  railroad  carriers  were  well  considered. 
Erie,  Comm'r,  said  :  "  It  is  well  settled  in  this  State  that  an  inter- 
mediate carrier,  one  who  receives  goods  to  be  transported  over  his 
route,  and  thence  by  other  carriers  to  their  place  of  destination, 
generally  remains  liable  as  a  common  carrier  until  he  has  delivered 
the  goods  to  the  next  carrier.  Miller  v.  Steam  Nav.  Co.,  10  N.  Y. 
431 ;  Gould  v.  Chapin,  20  N.  Y.  266  ;  Ladue  v.  Griffith,  25  N.  Y. 
364;  McDonald  v.  Western  Eailroad  Corporation,  34  K  Y.  497." 
This  rule  is  restricted  strictly  to  intermediate  carriers,  to  carriers 
who  are  not  to  deliver  to  the  consignee,  but  to  another  carrier,  to 
be  by  it  forwarded  on  to  its  final  destination.  The  judge  con- 
tinues : 

"  From  the  adrift  of  the  decisions  in  this  State,  I  think  we  may 
fairly  infer  the  following  rules  as  to  the  delivery  of  goods  at  their 
place  of  destination  by  a  railroad  carrier  :  If  the  consignee  is  pres- 
ent upon  the  arrival  of  the  goods,  he  must  take  them  without  un- 
reasonable delay.  If  he  is  not  present,  but  lives  at  or  in  the  im- 
mediate vicinity  of  the  place  of  delivery,  the  carrier  must  notify 
him  of  the  arrival  of  the  goods,  and  then  he  has  a  reasonable 
time  to  take  and  remove  them.  If  he  is  absent,  unknown,  or  can 
not  be  found,  then  the  carrier  can  place  the  goods  in  its  freight 
house,  and,  after  keeping  them  a  reasonable  time,  if  the  consignee 
does  not  call  for  them,  its  liability  as  a  common  carrier  ceases.  If, 
after  the  arrival  of  the  goods,  the  consignee  has  a  reasonable  oppor- 
tunity to  remove  them,  and  does  not,  he  can  not  hold  the  carrier  as 
an  insurer.  The  carrier's  liability  thus  applied  and  limited,  I  believe 
will  be  found  consonant  with  public  policy,  and  sufficiently  con- 
venient and  practicable.  See  Powell  v.  Myers,  26  Wend.  591 ; 
Fisk  v.  Newton,  1  Denio,  45  ;  Jones  v.  Norwich  &  N.  Y.  Trans. 
Co.,  50  Barb.  193 ;  Eoth  v.  Buffalo  &  State  Line  E.  E.  Co.,  34  IS".  Y. 
548."     Hence  where  goods  have  reached  their  destination,  notice 


FORMS   OF   PETITIONS.  523 


has  been  given  to  remove  them  and  a  reasonable  time  has  passed 
for  that  purpose,  or  if  no  consignee  can  be  found  and  they  are  stored, 
the  railroad  is  not  liable  for  their  loss,  if  burned  up  after  that,  as 
insurers,  but  only  as  warehousemen. 

A  railroad  company  can  not  by  express  contract  exonerate  itself 
from  liabilit}'  for  injuries  or  losses  happening  from  its  own  neglect ; 
it  can  by  agreement  exonerate  itself  from  its  common-law  liability 
as  an  insurer.  Welsh  v.  Pitt.,  Ft.  W.  &  Chicago  E.  E.  Co.,  10 
Ohio  St.  G5  ;  Graham  &  Co.  v.  Davis  &  Co.,  4  Ohio  St.  3G2  ;  Sayer 
v.  Portsmouth,  S.  &  P.  &  E.  E,  E.  Co.,  31  Maine,  228;  N.  J.  Steam 
Nav.  Co.  v.  Merchants'  Bank,  6  How.  U.  S.  344;  Chippendale  v.  L. 
&  Y.  E.  E.  Co.,  7  Eng.  L.  &  Eq.  395.  This  last  case  seems  to  be 
decided  on  an  English  statute.  The  following  cases  maintain  the 
doctrine  that  common  carriers  can  not  by  contract  exempt  them, 
selves  for  losses  occurring  from  their  own  negligence:  Steinway 
v.  Erie  E.  E.  Co.,  43  N.  Y.  123;  York  Co.  v.  Cen.  E.  E.  Co.,  3 
Wal.  107. 

188.     COMMON    CARRIERS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  I),  defendant, 
for  that  the  said  defendant,  before  and  at  the  time  of  the  delivery 
of  the  goods  hereinafter  mentioned,  was,  and  from  thence  hitherto 
hath  been,  and  still  is,  a  common  carrrier  of  goods  and  chattels 
for  hire;  and  that  the  said  plaintiff,  whilst  said  defendant  was 
such  common  carrier,  to  wit,  on  the         day  of  ,  a.  d.  18     , 

caused  to  be  delivered  to  the  said  defendant,  and  the  said  defend- 
ant then  accepted  and  received  of  and  from  the  said  plaintiff,  the 
following  goods  and  chattels  (or,  a  box,  or,  boxes,  containing 

divers  goods  and  chattels,)  to  wit.  (here  describe  the  goods,  etc.,)  of 
the  said  plaintiff  of  great  value,  to  wit,  of  the  value  of  $  ,  to 
be  safely  carried  and  conveyed  from  to  ,  and  thereto 

be  safely  delivered  for,  (or,  to,  as  case  is,)  the  said  plaintiff,  for  a  cer- 
tain reasonable  reward  to  the  said  defendant  in  that  behalf;  yet 
the  said  defendant,  not  regarding  his  said  duty  as  such  common 
carrier,  did  DOt,  nor  would  safely  or  securely  cany  or  convey  the 
said  from  to  ,  as  aforesaid,  noi   there,  to  wit,  at 

.  safely  deliver  the  same  for  (or,  to,)  the  said  plaintiff;  but 
on  the  contrary  thereof,  the  said  defendant  so  carelessly  and  negli- 
gently behaved  and  conducted  himself  in  the  premises  that,  by 

tlie   carelessness   and  fault    of  the   said    defendant,    the   said  , 

being  of  the  value  aforesaid,  was  then  and  there  wholly  lost  to  the 

said  plaintiff;  to  the  damage  of  the  said  plaintiff  $ 


524  FORMS   OF   PETITIONS. 


Wherefore  he  prays  judgment  against  the  said  defendant  for 
the  said  sum  of  $         ,  his  said  damages  so  as   aforesaid  sustained- 

189.     FOR    NOT    DELIVERING    IN    A   REASONABLE    TIME. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant 
for  that,  {here  insert  from  161  the  averment  of  being  a  common  car- 
rier,) and  the  said  plaintiff,  on  the  day  of  ,  A.  D.  18  ,  at 
the  special  instance  and  request  of  the  said  defendant,  caused  to  be 
delivered  to  him,  the  said  defendant,  certain  goods  and  chattels, 
(or,  certain  boxes,  containing  certain  goods  and  chattels,)  to  wit, 
(here  describe  the  goods,  etc.,)  of  the  said  plaintiff,  to  be  taken  care 
of  and  safely  carried  by  the  said  defendant  from  to  , 
and  there  at  ,  to  be  safely  delivered  by  the  said  defendant 
for  (or,  to,)  the  said  plaintiff  within  a  reasonable  time  thence  next 
following,  for  certain  hire  and  reward  to  the  said  defendant  in 
that  behalf;  and  the  said  defendant  did  then  accept  and  receive 
the  said  ,  for  the  purpose  and  on  the  terms  aforesaid ;  and 
although  a  reasonable  time  for  the  carriage  and  delivery  thereof, 
as  aforesaid  has  long  since  elapsed,  yet  the  said  defendant,  not  re- 
garding his  duty  in  that  behalf,  did  not,  nor  would,  within  such 
reasonable  time  as  aforesaid,  or  at  any  time  afterward,  take  care 
of,  or  safely  carry  the  said  goods  and  chattels  to  aforesaid, 
nor  there  at  ,  safely  deliver  the  same  for  (or,  to,)  the  said 
plaintiff;  but  hitherto  hath  wholly  neglected  so  to  do;  by  means 
whereof  the  said  of  the  said  plaintiff  have  been  wholly  lost 
to  him,  the  said  plaintiff;  to  his  damage  $ 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $        ,  his  said  damages  so  as  aforesaid  sustained. 

190.  FOR  NOT  DELIVERING  BAGGAGE  OF  PASSENGER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  before  and  at  the  time  of  the  delivery 
of  the  goods  and  chattels  hereinafter  described,  was  the  owner  of 
a  certain  stage-coach,  (or,  railroad,  or,  steamboat,  as  case  may  be,) 
for  the  carriage  and  convej^ance  of  passengers  and  their  baggage 
for  reasonable  hire  and  reward  to  the  said  defendant  in  that  behalf; 
and  the  said  plaintiff,  at  the  special  instance  and  request  of  the  said 
defendant,  did,  on  the        day  of*  ,  a.  d.  18     ,  cause  to  be  de- 

livered to  the  said  defendant  a  certain  trunk,  (or,  valise,  carpet- 
sack,  box,  etc.,)  containing  the  following  goods  and  chattels,  to  wit, 
(here  describe  them,)  of  the  said  plaintiff  to  be  taken  care  of  and 


FORMS   OP   PETITIONS.  525 

safely  carried  by  the  said  defendant  to  ,  and  there  to  be  safely 

delivered  by  the  said  defendant  for  the  said  plaintiff;  and  the  said 
defendant  then  and  there  accepted  and  received  the  said  and 

its  contents  aforesaid,  for  the  purpose  aforesaid,  and  undertook  the 
carriage  and  delivery  thereof  as  aforesaid;  and  although  a  i-eason- 
able  time  for  the  carriage  and  delivery  thereof  as  aforesaid  has 
long  since  elapsed,  yet  the  said  defendant,  not  regarding  his  said 
duty  in  the  premises,  did  not,  nor  would,  within  such  reasonable 
time,  or  at  any  time  since,  take  care  of,  or  safely  carry  the  said 
,  and  its  said  contents,  to  aforesaid,  nor  there  safely  deliver 

the  same  for  the  said  plaintiff,  but  hath  wholly  neglected  and  re- 
fused so  to  do ;  by  means  whereof  the  said  plaintiff  hath  wholly 
lost  said  trunk  and  its  said  contents;  to  the  damage  of  the  said 
plaintiff  8 

Wherefore  he  prays  judgment  against  the  said  defendant  for  the 
said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

191.    AGAINST    A   CARRIER   BY   WATER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  at  the  special  instance  and  request  of  the 
said  defendant,  did,  on  the         day  of  ,  a.  d.  18     ,  at  , 

cause  to  be  delivered  to  the  said  defendant  divers  goods  and  chat- 
tels and  merchandise,  to  wit,  (here  describe  them,')  of  the  said  plaint- 
iff, of  great  value,  to  wit,  of  the  value  of  $  ,  to  be  carried  by 
the  said  defendant  in  and  by  a  certain  ship,  (or,  steamboat,  or, 
vessel.)  called  ,  from  aforesaid  to  ,  and  there,  at 

aforesaid,  to  be  delivered  to  the  said  plaintiff  (or,  to  his  as- 
signee, or,  to  the  consignee,  if  one  be  named,)  for  certain  freight  and 
reward  to  the  said  defendant  in  that  behalf,  [the  dangers  of  the 
seas,  (or,  river,)  the  public  enemies,  and  the  act  of  God  excepted ; 
(let  this  averment  correspond  with  exceptions  in  bill  of  lading;)]  and 
he,  the  said  defendant,  then  and  there  took  and  received  the  same 
accordingly,  for  the  purpose  aforesaid.  And  although  the  said 
ship  (or,  vessel,  or, steamboat,  etc.,)  afterward  in  a  reasonable  time 
did  safely  arrive  at  aforesaid,  and  no  dangers  of  the  (let  this 

correspond  with  the  bill  of  lading;')  prevented  the  safe  carriage  or 
delivery  of  the  said  goods,  chattels,  and  merchandise  aforesaid,  yet 
tie-  -aid  defendant  not  regarding  bis  said  duly  in  that  behalf,  did 
not  deliver  the  Baid  goods,  chattels,  and  merchandise  to  the  said 
plaintiff,  hut  so  carelessly  and  negligently  conducted  himself  in 
this   behalf  that,   for   want  of  due  care  on  the    part   of  said    de- 


52G  FORMS   OF   PETITIONS. 


fendant  and  servants  in  that  behalf,  the  said  goods,  chattels,  and 
merchandise  became  and  were  wholly  lost  to  the  said  plaintiff;  (or, 
if  the  goods  are  damaged,  state  that;  if  part  have  been  delivered, 
then  no  notice  need  probably  be  taken  of  that  fact;  the  petition  need 
specify  only  the  goods  lost;)  to  the  damage  of  the  said  plaintiff 

Wherefore  the  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

102.    AGAINST    AN    INNKEEPER,  TOR    LOSS   OF   GOODS,  ETC. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  before  and  at  the  time  of  the  loss  herein- 
after mentioned,  was  an  innkeeper,  and  as  such  kept  a  common 
inn  for  the  reception,  lodging,  and  entertainment  of  travelers,  situ- 
ate at  ,  in  the  county  of  ,  and  the  said  plaintiff  hereto- 
fore, to  wit,  on  the        day  of  ,  a.  d.  18     ,  put  up,  and  was 
then  and  there  received  into  the  said  inn  as  a  traveler  by  the  said 
defendant,  and  then  and  there  brought  into  the  said  inn  a  certain 
trunk  (or,  box,  valise,  carpet-sack,  etc.,)  containing  certain  goods 
and  chattels,  to  wit,  (here  state  the  articles  as  specifically  as  can  be 
done,)  of  the  said  plaintiff,  of  great  value,  to  wit,  of  the  value  of 
8         ,  and  which  said  trunk,  with  its  contents  aforesaid,  were  then 
in  said  inn  and  so  continued  up  to  the  loss  thereof,  as  hereinafter 
mentioned,  and  that  said  plaintiff  during  all  that  time  abided  as  a 
traveler  therein;  yet  the  said  defendant,  not  regarding  his  said 
duty  as  such  innkeeper,  did  not  keep  the  said  trunk  and  its  said 
contents,  so  being  in  said  inn,  safely  and  without  loss  ;  but  on  the 
contrary  thereof,' the  said  defendant  and  his  servants  so  negligently 
and  carelessly  conducted  themselves  in  that  behalf  that  afterward, 
and  whilst  the  said  plaintiff  so  abided  in  the  said  inn,  to  wit,  on 
the         day  of            a.  d.  18     ,  the  said  trunk  and  its  said  contents 
were,  by  and  through  the  negligence  and  default  of  said  defend- 
ant and  his  servants  in -that  behalf,  wrongfully  taken  and  carried 
away  by  some  person  or  persons,  to  the  said  plaintiff  as  yet  un- 
known, and  thus  became  and  are  wholly  lost  to  the  said  plaintiff; 
to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 


FORMS    OF   PETITIONS.  527 


193.    AGAINST    AN   ATTORNEY. 

The  said  A  B,  plaintiff,  complains  of  C  D,  defendant,  for  that, 
before  and  at  the  time  of  the  committing  of  the  wrongs  by  said 
defendant  hereinafter  mentioned,  the  said  plaintiff,  at  the  special 
instance  and  request  of  the  said  defendant,  had  retained  and  em- 
ployed the  defendant  as  an  attorney  and  counselor  at  law,  to  pros- 
ecute and  conduct  and  manage  a  certain  action  in  the  Court  of 
Common  Pleas,  within  and  lor  the  county  of  ,  in  said  State 

of  Ohio,  b}~  and  at  the  suit  of  the  said  plaintiff  against  one  E  F, 
for  the  recovery  of  a  certain  sum  of  money,  (or,  claim,)  to  wit,  the 
sum  of  $  ,  then  claimed  by  the  said  plaintiff  to  be  due  to  him 
from  the  said  E  F,  for  fees  and  rewards  to  the  said  defendant  in 
that  behalf;  and  the  said  defendant  then  and  there  accepted  and 
entered  upon  said  retainer  and  employment;  yet  the  said  defend- 
ant, not  regarding  his  said  duty  in  the  premises,  did  not,  nor  would 
prosecute,  conduct,  or  manage  the  said  action  with  due  and  proper 
care,  skill,  and  diligence  ;  but  on  the  contrary  thereof,  prosecuted, 
conducted,  and  managed  the  said  action  in  such  a  careless,  un- 
skillful, undue,  and  improper  manner,  and  with  such  want  of  skill 
and  diligence  in  that  behalf,  that  the  said  action  afterward,  to  wit, 
at  the  term  of  said  court,  A.  d.  18     ,  became  and  was  ren- 

dered wholly  abortive,  and  the  said  plaintiff  then  and  there  was 
forced  and  obliged  to  be,  and  he  then  ami  there  was  nonsuited,  (or 
if  verdict  be  rendered  <t<j<tmst  him,  date  the  fact  as  it  is,)  whereby 
the  said  plaintiff  was  and  has  been  hindered  and  prevented  from 
recovering  his  said  claim  from  the  said  E  F,  but  is  likely  to  lose 
the  same,  and  hath  also  been  forced  to  pay  costs  and  charges,  in 
and  about  said  action  expended,  to  the  amount  of  8  ,  and  hath 
also  paid  said  defendant,  as  such  attorney  in  said  action,  the  sum 
of  I  ,  whereby  the  plaintiff  hath  sustained  damages  to  the  sum 
.,i  8 

Whereupon  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendanl  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid  sus- 

tained. 

101.    AGAINST    A    SURGEON. 

The  said  A  1>.  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  tin-  -aid  plaintiff,  before  and  at  the  time  of  the  retainer  of  the 

said  defendant  hereinafter  mentioned,  had  had  the  hones  of  his 
righl  leg  below  the  knee  broken  and  fractured:  ami  that  after- 
ward, to  wit,  on  the  day  of  ,  A.  D.  18     ,  the  said  plaintiff, 

at  the  special  instance  and  request  of  the  said  defendant,  retained 


528  FORMS   OP   PETITIONS. 

and  employed  the  said  defendant,  as  a  surgeon,  to  set  and  reduce 
the  said  fracture  of  the  bones  of  his  said  leg  to  their  proper  posi- 
tion and  place,  and  to  attend  to,  cure,  and  heal  the  same,  for  a  cer- 
tain fee  and  reward  to  the  said  defendant  in  that  behalf;  and  the 
said  defendant  undertook  aiyi  entered  upon  such  retainer  and  em- 
ployment; yet  the  said  defendant,  not  regarding  his  duty  in  the 
premises,  so  carelessly,  negligently,  and  unskillfully  set  and  re- 
timed the  said  fracture  of  said  leg,  and  so  negligently  and  un- 
skillfully bound  up,  and  dressed,  and  bandaged  the  same,  and 
so  unskillfully  and  negligently  nursed  and  attended  to  the  said 
fracture  and  injury,  that  the  said  plaintiff,  by  reason  of  such  un- 
skillfulness  and  negligence,  has  wholly  lost  the  use  of  his  said  leg, 
(or,  that  his  said  leg  has  become,  and  still  is,  crooked  and  shorter 
than  in  its  natural  state,)  whereby  he  hath  been  greatly  injured, 
and  rendered  unfit  and  unable  to  follow  his  lawful  business,  and 
has  also  been  put  to  great  expense,  to  wit,  the  sum  of  $  ,  in  and 
about  endeavoring  to  straighten,  and  improve,  and  cure  his  said 
leg ;  to  the  damage  of  the  said  plaintiff  $ 

"Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

The  character  of  the  averments  as  to  the  fracture,  and  the  neg- 
ligence, must  be  varied  to  suit  the  facts  of  each  case.  If  the  neg- 
lect was  that  the  fracture  was  not  reduced,  whereby  the  injury  oc- 
curred, it  should  be  so  stated.  If  the  fracture  was  reduced,  and  the 
injury  happened  from  not  using  a  proper  splint,  or  in  neglecting 
to  bandage  it  properly,  whereby  it  got  out  of  place  again,  it  should 
be  so  stated,  as  the  fact  may  be. 

195.    AGAINST   BAILEE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  at  the  special  instance  and  request  of  the 
said  defendant,  did,  on  the        day  of  ,  a.  d.  18     ,  deliver  to 

the  said  defendant  certain  goods  and  chattels,  to  wit,  (here  describe 
them,)  of  the  said  plaintiff,  of  great  value,  to  wit,  of  the  value  of 
$  ,  to  be  by  the  said  defendant,  (here  state  the  purpose  for  which 
the  goods  are  received,  whether  to  be  carried  or  to  be  kept,  or  safely 
to  be  loaded  on  a  certain  steamboat  or  wagon,)  at  ,  for  the 

said  plaintiff,  for  a  reasonable  reward,  (if  no  pay  is  to  be  given, 
leave  this  out,)  to  the  said  defendant  in  that  behalf,  and  the  said 
defendant  then  and  there  received  said  goods  and  chattels  for  the 


FORMS   OF   PETITIONS.  529 

purpose  aforesaid ;  yet  the  said  defendant,  not  regarding-  his  duty 
in  that  behalf,  afterward,  on  the         day  of  ,  a.  d.  18      ,  hy 

himself  and  his  servants  in  that  hehalf,  conducted  himself  so  care- 
lessly and  negligently  in  and  ahout  the  loading  of  the  said  goods  on 
board  of  said  ship,  that,  by  and  through  the  mere  negligence  of 
the  said  defendant  and  his  servants  in  that  behalf,  the  said  goods 
and  chattels  then  and  there  became  and  were  greatly  broken  and 
damaged,  and  wholly  lost  to  the  said  plaintiff;  to  the  damage  of 
said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  S  ,  his  damages  so  as  aforesaid 
sustained. 

196.  FOR  NOT  TAKING  CARE  OF  GOODS,  WITHOUT  REWARD. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  at  the  special  instance  and  request  of 
the  said  defendant,  did,  pn  the        day  of  ,  a.  d.  18     ,  deliver 

to  the  said  defendant  the  folloAving  goods  and  chattels,  to  wit, 
(here  describe  the  same,")  of  the  said  plaintiff,  of  the  value  of  S  , 
to  be  taken  care  of  and  safely  kept  bj-  the  said  defendant  for  the 
said  plaintiff,  and  to  be  redelivered  by  the  said  defendant  to  the 
saiil  plaintiff,  when  he,  the  said  defendant,  should  be  thereunto 
afterward  requested  ;  and  the  said  defendant  then  and  there  had 
and  received  said  goods  and  chattels  for  the  purpose  aforesaid; 
and  the  said  plaintiff  further  saith  that  afterward,  to  wit,  on  the 
day  of  ,  A.  D.  18     ,  he  requested   the  said  defendant  to 

redeliver  to  him,  the  said  plaintiff,  the  said  goods  and  chattels; 
yet  the  said  defendant  did  not,  nor  would  take  due  care  of  said 
goods  and  chattels,  or  safely  keep  the  same  for  the  said  plaintiff, 
nor  did.  nor  would,  when  so  requested  as  aforesaid,  or  at  any  time 
before  or  since,  redeliver  the  same  to  the  said  plaintiff;  hut,  on  the 
contrary,  the  -aid  defendant  so  carelessly  conducted  himself  with 
reaped  to  the  -aid  goods  and  chattels,  that,  by  and  through  the 
negligence  and  default  of  the  said  defendant,  the  said  goods  and 
chattels  became  and  were  wholly  lost  to  the  said  plaintiff;  to  the 
damage  of  the  -aid  plaintiff  I 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  off  ,  his  damages  so  as  aforesaid 
sustained. 

\  ol.  i — \'A 


530  FORMS   OP   PETITIONS. 


197.    FOR   DECEIT    IN    SALE   OP   A    HORSE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  at  the  special  instance  and  request  of  the 
said  defendant,  did,  on  the        day  of  ,  a.  d.  18     ,  bargain 

with  the  said  defendant  to  buy  of  him,  the  said  defendant,  a 
certain  horse,  (or,  mare.)  at  and  for  a  certain  price  or  sum  of 
money,  to  wit,  the  sum  of  $  ,  and  the  said  defendant,  to  induce 
said  plaintiff  to  buy  said  horse  at  the  sum  aforesaid,  did  then 
falsely  represent  that  the  said  horse,  so  far  as  he,  the  said  defend- 
ant, knew,  was  sound  and  gentle,  and  broken  to  draw  in  a  carriage  ; 
and  the  said  plaintiff,  relying  on  the  statements  of  the  said  defend- 
ant, did  then  buy  of  the  said  defendant  the  said  horse,  at  the  said 
sum  of  $  ,  and  then  paid  the  said  defendant  therefor;  and  the 
said  plaintiff  saith  that  the  said  horse  was  not  sound,  nor  gentle, 
nor  broken  to  draw  in  a  carriage,  as  the  said  defendant  repre- 
sented ;  but  that  said  horse  was  unsound  in  this — that  he  had  a 
certain  disease,  ealled  ,  and  was  also  lame  in  his  right  fore- 

shoulder,  and  had  been  greatly  injured  in  his  health  by  having 
been  overworked,  so  that  he  could  not  perform  the  labor  of  a  well 
and  sound  horse,  and  that  said  horse  was  restive,  fractious,  liable 
to  kick,  and  refused  to  draw  in  a  carriage ;  and  the  said  plaintiff 
further  saith  that  the  said  defendaut,  at  the  time  he  so  repre- 
sented said  horse  to  be  sound  and  gentle,  and  broken  to  a  carriage, 
well  knew  that  said  horse  was  not  sound,  gentle,  and  broken  to  a 
carriage ;  but,  on  the  contrary,  knew  that  said  horse  was  unsound, 
restive,  fractious,  liable  to  kick,  and  would  not  draw  in  a  carriage ; 
wherefore  the  said  plaintiff  saith  he  has  been  deceived  by  the  said 
defendant;  to  the  damage  of  him,  the  said  plaintiff,  f> 

Wherefore  the  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  said  sum  of  $        ,  his  damages  so  as  aforesaid  sustained. 

198.  FOR  DECEIT  ON  EXCHANGE  OP  A  HORSE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  heretofore,  to  wit,  on  the  day  of  , 

A.  D.  18  ,  at  the  special  instance  and  request  of  the  said  defend- 
ant, bargained  with  the  said  defendant  to  exchange  with  the  said 
defendant  a  certain  horse,  (or,  filly ;  or,  mare ;  or,  colt ;  or,  ox,  cow, 
etc.,)  of  the  said  plaintiff,  of  the  value  of  $  ,  and  for  a  sum 
$  ,  in  money,  to  be  therefor  paid  and  delivered  by  the  said 
plaintiff  to  the  said  defendant,  together  with  the  said  horse  of  the 
said  plaintiff  in  exchange  for  the  said  horse  of  the  said  defendant; 


FORMS   OP   PETITIONS.  531 


and  the  said  defendant,  to  induce  said  plaintiff  to  make  said  ex- 
change, then  falsely,  knowingly,  and  willfully  represented  to  the 
said  plaintiff  that  the  said  horse  of  the  said  defendant  "was  sound, 
as  far  as  he,  the  said  defendant,  knew,  (or,  gentle;  or,  broken  to 
work  in  a  carriage  or  team  ;  or  whatever  the  representation  was,')  he, 
the  said  defendant,  then  well  knowing  that  said  horse  was  not 
sound  ;  and  the  said  plaintiff,  confiding  in  said  representation,  did 
then  deliver  his  said  horse,  and  paid  said  sum  of  money  to  the 
said  defendant  in  exchange  for  the  said  horse  of  the  said  defend- 
ant ;  and  the  said  plaintiff  saith  that  at  the  time  of  said  exchange 
the  said  horse  was  not  sound,  but,  on  the  contrary,  was  then,  and 
still  is,  unsound,  and  hath  become  of  no  value  to  the  said  plaintiff; 
to  the  damage  of  the  said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant lor  the  said  sum  of  8  ,  his  damages  so  as  aforesaid  sus- 
tained. 

199.  FOR  DECEITFULLY  SELLING  A  SMALLER  QUANTITY  OP  COAL  THAN 

PRETENDED. 

The  said  A  B,  plaintiff,  complains  of  the  said,  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the  day  of  ,  a.  d.  18     ,  at 

the  special  instance  and  request  of  the  said  defendant,  bargained 
for  and  agreed  to  buy  of  the  said  defendant,  and  the  said  defendant 
then  sold  to  the  said  plaintiff,  bushels  of  coal,  at  and  for 

the  price  of  for  each  and  every  bushel ;  and  the  said  defendant 
afterward,  on  the  said  day  of  ,  a.  d.  18     ,  fraudulently 

and  deceitfully  intending  to  defraud  the  said  plaintiff,  did  fraudu- 
lently and  deceitfully  deliver  to  the  said  plaintiff  only  bushels 
of  coal,  as  and  lor  the  said  quantity  of  bushels,  so  bargained 
for  and  sold  to  the  said  plaintiff  as  aforesaid,  he,  the  said  defend- 
ant, then  well  knowing  that  the  coal  so  delivered  did  not  con- 
tain the  said  quantity  of  bushels,  hut  only  the  said  quantity  of 
bushels;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid  sus- 
tained. 

Note.— See  :>  Starkie,  23. 

200.  For  DECEITFULLY  BELLING  A   TRACT   OP    LAND    FOR   MORE   THAN 

WAS    in    it. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  J),  defendant,  for 

that  the  said    plaintiff,  on   the  day  of  ,  A.  D.   18     ,  l>ar- 


532  FORMS   OF   PETITIONS. 


gained  with  the  said  defendant  to  buy  of  him  a  certain  piece  or 
parcel  of  land  of  the  said  defendant,  situate  ,  which  said  piece  or 
parcel  of  land  the  said  defendant  then  falsely  represented  to  con- 
tain acres,  when  he,  the  said  defendant,  then  well  knew  that 
said  piece  or  parcel  of  land  contained  only  acres  therein  ;  that 
the  said  plaintiff,  then  confiding  in  the  truth  of  said  representa- 
tions, and  supposing  said  parcel  of  land  to  contain  the  said  quan- 
tity of  acres,  agreed  to  pay  for  said  land,  and  did  then  pay 
therefor  to  the  paid  defendant  the  sum  of  $  ,  whereas  in  truth 
and  fact  the  said  piece  or  parcel  of  land  did  not  contain  the  said 
quantity  of  acres,  but  only  the  quantity  of  acres,  whereby 
the  said  plaintiff  has  sustained  damages  to  the  amount  of  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. _ 

Note.— Wardell  v.  Davis,  13  Johns.  325 ;  Morrell  v.  Colver,  13 
lb.  395. 

201.     FOR    FALSELY    REPRESENTING    A    THIRD    PERSON    AS    FIT    TO    BE 

TRUSTED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D.  defendant,  for 
that  the  said  plaintiff,  before  and  at  the  time  of  the  committing  of 
the  injuries  hereinafter  stated,  was,  and  ever  since  hath  been,  a 
,  and  has  carried  on  at  ,  the  said  trade  and  business  during 
all  that  time ;  and  one  E  F  did  then  and  there  apply  to  the  said 
plaintiff,  and  requested  said  plaintiff  to  sell  goods  on  a  credit  to  the 
said  E  F,  in  the  way  of  the  said  plaintiff's  said  trade  and  business 
of  a  ;  and  the  said  plaintiff,  being  then  unacquainted  with  the 
character  and  solvency  of  the  said  E  F,  was,  by  the  said  E  F,  then 
referred  to  the  said  defendant  for  information  respecting  the  char- 
acter and  solvency  of  him,  the  said  E  F  ;  and  the  said  plaintiff  did, 
on  the  day  of  ,  A.  D.  18     ,  apply  to  the  said  defendant 

for  information  as  to  the  character  and  solvency  of  the  said  E  F, 
and  the  said  defendant  did  then,  in  reply  to  such  application, 
falsely  represent  and  assert  to  the  said  plaintiff  that  the  said  E  F 
was  of  a  fair  character  for  integrity  as  a  business  man,  that  he  was 
a  merchant  at  ,  and  was  worth  the  sum  of  $  ,  and  could 

safely  be  trusted  for  any  sum  not  exceeding  $  ,  (or  whatever  the 
representation,)  and  that  the  said  plaintiff,  relying  upon  said  repre- 
sentations, did  then  sell  a  bill  of  goods  to  the  said  E  F  on  a  credit 
of        months,  to  the  amount  of  $        ,  which  said  bill  of  goods  the 


FORMS   OF   PETITIONS.  533 


said  E  F  has  never  paid;  and  the  said  plaintiff  avers  that  the  said 
E  F.  at  the  time  of  the  said  representations,  was  not  a  man  of  in- 
tegrity, and  was  not  worth  the  said  sum  of  $  ,  and  could  not 
then  he  safely  trusted  for  any  sum  not  exceeding  8  ;  but  on  the 
contrary,  that  the  said  E  F  was  notoriously  a  dishonest  man,  was 
wholly  insolvent,  and  unfit  to  be  trusted  for  any  sum  whatever; 
and  the  said  defendant,  when  he  so  made  the  said  representations, 
well  knew  that  the  said  E  F  was  not  a  man  of  integrity,  that  he 
was  wholly  insolvent,  and  unfit  to  be  credited  for  any  amount 
whatever  ;  whereby  the  said  plaintiff  has  sustained  damages  to  the 
amount  of  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  S  ,  his  damages  so  as  aforesaid  sus- 
tained. 

For  the  law  on  this  subject,  see  McCracken  v.  West  et  al.,  17 
Ohio,  1G;  2  East,  107;  3  B.  &  P.  367;  1  Taunt.  558;  6  Bing.  396; 
3  Bsp.  194;  7  Price,  544;  Young  v.  Covell,  8  Johns.  23;  Addington 
v.  Allen,  11  Wend.  375. 

202.    FOR    NEGLIGENCE    IN    DRIVING    A   CARRIAGE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the        day  of  ,  a.  d.  18     ,  was 

possessed  of  a  certain  wagon  (or,  coach,  or,  buggy.)  of  the  value 
of  8  ,  and  of  a  horse,  of  the  value  of  8  ,  then  drawing  said 
wagon,  and  in  which  said  wagon,  so  being  drawn,  the  said  plaintiff 
was  then  riding  along  a  certain  public  highway;  and  the  said  de- 
fendant was  also  then  and  there  possessed  of  another  wagon  and 
another  horse  (or,  two,  or,  four  other  horses.)  drawing  the  same, 
and  which  wagon  and  horses  were  then  under  the  direction  of  the 
said  defendant  (or,  of  a  certain  servant  of  the  said  defendant,) 
who  was  then  and  there  driving  the  same  in  and  along  said 
highway;  and  that  the  said  defendant  then  and  there  (or,  by  his 
said  servant,)  so  carelessly  drove  his  said  wagon  and  horse  that,  by 
and  through  the  carelessness  and  negligence  of  the  said  defendant, 
(or,  by  his  said  servant,)  in  thai  behalf,  the  said  wagon  of  the 
said  defendant  then  and  there  ran  and  struck  with  great  force 
upon  and  against  the  wagon  of  the  said  plaintiff,  ami  thereby 
crashed,  broke  in  pieces,  and  greatly  damaged  the  Bame;  and 
thereby  the  said  plaintiff  was  thrown  with  great  force  from  his 
said  wagon  to  and  upon  the  ground,  and  was  thereby  greatly  hurt, 
bruised,  and  wounded,  (or,  it  any  bones  were  dislocated,  or  frac- 


t 

534  FORMS    OF   PETITIONS. 


lured,  set  that  foot  forth,)  and  became  sick  and  lame,  and  so  re- 
mained for  works,  and  was,  during  all  that  time  unable  to  at- 
tend to  bis  usual  business,  and  was  forced  to  expend  $  ,  in  and 
about  endeavoring  to  be  cured  of  bis  said  burt  and  wounds,  and 
in  and  about  repairing  bis  said  wagon  so  as  aforesaid  injured ;  to 
the  damage  of  tbe  said  plaintiff  $ 

Wherefore  tbe  said  plaintiff  prays  judgment  against  the  said 
defendant  for  tbe  said  sum  of  $>  ,  bis  damages  so  as  aforesaid 
sustained. 

For  tbe  law,  sec  3  C.  &  P.  544;  1  East,  106 ;  3  lb.  593 ;  6  Term, 
125 ;  5  lb.  G48 ;  4  B.  &  A.  590 ;  2  Esp.  685 ;  Jaquith  v.  Eicbardson, 
8  Metcalf,  213;  Dudley  v.  Bolles,  24  Wend.  465  ;  Johnson  v.  Small, 
5  B.  Mon.  25;  Fales  v.  Dearborn,  1  Pick.  345;  Palmer  v.  Barker, 
2  Fairf.  338. 

203.    NEGLIGENCE    IN   NAVIGATING   STEAMBOATS,    SHIPS,  ETC. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  before  and  at  the  time  of  committing 
the  injuries  hereinafter  mentioned,  was  possessed  of  a  certain  flat- 
boat,  (barge,  steamboat,  or  other  water-craft,  as  the  case  may  be,} 
of  the  value  of  $  ,  then  afloat  in  the  Ohio  river,  and  loaded 
with  divers  goods  and  chattels,  to  wit,  (here  describe  them,')  and  the 
said  defendant  was  then  and  there  possessed  of  a  certain  steam- 
boat, called  the  ,  (or,  other  vessel,)  and  then  and  there,  (by 
and  through  bis  servants,)  bad  tbe  management  and  direction 
thereof;  and  the  said  defendant,  not  regarding  his  duty  in  that 
behalf,  and  whilst  the  said  flat-boat  was  floating  upon  said  river, 
took  so  little  and  such  bad  care  of  his  said  steamboat,  in  the  direc- 
tion and  management  thereof,  that  the  same,  by  and  through  the 
carelessness,  negligence,  and  mismanagement  of  the  said  defend- 
ant (or,  if  he  teas  not  on  board,  by  his  servants  in  that  behalf,) 
then  and  there  with  great  force  ran  foul  of  and  struck  against  the 
said  flat-boat  of  the  said  plaintiff,  and  thereby  broke  and  greatly 
damaged  the  same,  and  thereby  the  said  goods  and  chattels  of  the 
said  plaintiff  then  on  board  of  said  flat-boat  became  and  were 
greatly  wetted,  damaged,  and  spoiled ;  and  the  said  plaintiff,  by 
reason  thereof,  has  been  obliged  to  lay  out,  expend,  and  pay  the 
sum  of  $  ,  in  and  about  repairing  the  damage  to  said  flatboat, 
and  in  saving  and  taking  care  of  said  goods  and  chattels  so  as 
aforesaid  injured;  and  was  also  deprived  of  the  use  of  his  said 


FORMS    OF    PETITIONS.  535 


flatboat   for   the    space   of  ;  to   the   damage   of  the   said 

plaint i if  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  &  ,  his  damages  so  as  aforesaid 
sustained. 

The  plaintiff  can  not  recover  if  the  fault  by  which  the  accident 
occurred  was  his ;  the  plaintiff  must  show  he  used  ordinary  care. 
Barnes  v.  Cole,  21  Wend.  188;  -1  McLean,  286,  589;  Eathburn  v. 
Payne,  19  lb.  399 :  United  States  v.  Mayor,  5  Mo.  230;  Simpson 
v.  Hand,  G  Whart.  311 ;  Logan  v.  Steamboat  Clipper,  18  Ohio,  375. 
Nor  is  the  owner  of  the  steamboat  or  vessel  liable  for  an  injury  will- 
fully committed  by  the  master  or  pilot  running  her.  Turnpike 
Co.  v.  Vanderbilt,  1  Hill,  480. 

So,  where  the  collision  occurs  without  the  negligence  of  either 
party,  each  must  bear  his  own  loss.  Stainbach  v.  Roe,  1-1  How. 
U.  S.  532;  Williamson  v.  Barrett,  13  lb.  101 ;  Halderman  v.  Beck- 
with.  \  .McLean.  28G ;  Barrett  v.  Williamson,  4  lb.  589;  4  Harring. 
228;   1  Texas.  30. 

Steam-vessels  are  bound  to  keep  clear  of  floating  or  sailing  ves- 
sels, treated  as  having  wind  in  their  favor.  St.  John  v.  Paine,  10 
How.  U.  S.  581 ;  Nanton  v.  Stebbens,  10  lb.  58G ;  The  Lady  Anne, 
1  Eng.  L.  &  Eq.  G70 ;  The  Europa,  2  lb.  557;  Western  Belle  v. 
Wagner.  11  Mo.  30. 

204.     AGAINST    ADJOINING     LOT-OWN  Ell   FOR    FLOWING    WATER    FROM 
RESERVOIR    INTO    HIS    MINE. 

The  said  plaintiff  complains  of  said  defendant,  for  that  at  the 
time  of  committing  the  grievances  hereinafter  mentioned,  the  said 
defendant  was  possessed  of  certain    lands,  situate  in  ,  of  the 

county  of  ,  except  the  mines  and   veins  of  coal  under  the 

same;  and  that  the  plaintiff  was  possessed  of  certain  coalmines 
lying  near  the  land  of  said  defendant,  situate  in  the 
aforesaid,  and  thai  by  reason  thereof  and  by  a  license  of  A  B,  in 
jsioil  of  en-lain  underground  openings  and  cavities  near  said 
mines,  he  was  entitled  to  use  those  cavities  lor  the  purpose  of  work- 
ing the  said  mines  and  veins  of  coal,  and  getting  coals  from  said 
mines  and  carrying  them  i brougb  said  openings  and  cavil ies;  yei 
aid  defcndanl  so  carelessly  and  negligently  constructed  on  the 

sai<l  land  of  said  defendants  a  reservoir  to  contain  water,  ami  kept, 

tie  rein  in  their  possession  and  under  their  care  large  quantities  of 

Water,  and    took  so  little  and   such  hail   care  of  the  water  in   said 


53G  FORMS   OF    TETITIONS. 


reservoir  and  of  said  reservoir,  that,  on  the        day  of  ,  a.  d. 

IS  ,  large  quantities  of  said  water,  by  reason  of  the  premises,  es- 
caped from  said  reservoir,  and  flowed  toward  and  into  said  mines 
and  cavities  and  openings,  whereby  the  said  plaintiff  was  prevented 
for  a  Long  time  from  working  the  mines  and  getting  coal  therefrom 
and  carrying  the  same  through  the  said  cavities  and  openings,  and 
was  put  to  great  expense  in  pumping  out  the  water  aforesaid  and 
repairing  the  damage  done  by  it,  and  lost  great  gains  and  profits, 
which  he  otherwise  might  have  made  thereby,  and  that  such  rea- 
sonable  fear  of  being  drowned  in  the  mines  and  cavities  was  caused 
in  the  minds  of  the  workmen  therein  then  and  theretobefore  em- 
ployed, that  the  working  of  said  mines  became  impossible  for  a 
time  and  was  permanently  rendered  more  expensive  and  difficult 
than  it  had  been  theretofore,  or  would  otherwise  have  continued 
to  be;  to  the  damage  of  the  plaintiff  $ 

Wherefore  the  plaintiff  demands  judgment  against  said  defend' 
ant  for  said  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

A  B,  Attorney  for  Plaintiff. 

This  is  substantially  a  copy  of  the  declaration  in  the  case  of 
Fletcher  v.  Eylands,  L.  B.,  1  Exch.  2G5.  With  a  little  change  it 
may  be  made  to  meet  numerous  cases  that  may  in  practice  arise. 
The  parties  in  this  case  were  not  the  owners  in  fee  of  the  land,  but 
tenants  of  Lord  Wilton.  The  language  would  be  a  little  changed 
where  the  parties  owned  the  fee;  the  averment  then  might  be 
that  the  plaintiff  or  defendant  was  seized  in  fee  and  possessed  of 
certain  real  estate.  It  is  the  one  who  occupies  the  land  and  erects 
the  cause  of  the  damage  who  is  liable,  whether  he  be  owner  or  ten- 
ant. The  opinion  of  Blackburn,  J.,  who  delivered  the  opinion  of 
the  Court  of  Exchequer,  is  a  most  exhaustive  examination  of  the  law 
under  which  parties  are  liable  for  damages  happening  to  another 
from  their  acts. 

205.    NEGLIGENCE   IN    HAVING   POISONOUS   TREES   ON   ONE'S   LAND   AND 
ALLOWING   THEM   TO    GET    ON    LAND    OF   ANOTHER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant  heretofore,  to  wit,  on  the  day  of  , 
a.  d.  18  ,  and  before  and  after  that  time,  and  at  the  time  of  com- 
mitting the  grievances  hereinafter  stated,  was  in  the  possession  of 
a  certain  parcel  of  land,  containing  acres,  more  or  less,  situate 
in  the  of  ,  in  the  said  county  of  ,  and  had  growing 

thereon  certain  trees,  the  clippings  of  which  trees  were  poisonous 


FORMS   OF   PETITIONS.  537 


to  horses  and  cattle  eating  the  same,  to  wit,  (here  name  the  hind 
of  trees;)  and  that  the  said  plaintiff  was  possessed  of  a  certain 
other  field  or  parcel  of  land  adjoining  to  the  said  field  or  parcel  of 
land  of  said  defendant,  and  in  which  the  said  plaintiff  kept  and 
pastured  his  horses  and  cattle,  to  wit,  horses  and  cattle,  of 
all  which  aforesaid  the  said  defendant  had  full  knowledge  ;  yet  the 
said  defendant,  disregarding  his  duty  in  that  behalf,  clipped  or 
caused  to  be  clipped  the  branches  and  twigs  from  off  said  trees, 
and  so  carelessly  took  care  of  and  managed  said  branches  and 
twigs  so  cut  from  off  said  trees,  that  the  same,  through  the  care- 
lessness and  negligence  of  said  defendant,  were  thrown  and  got 
into  the  field  of  said  plaintiff,  and  the  horses  and  cattle  of  said 
plaintiff  eat  thereof,  and  thereby  became  poisoned  and  died,  to  wit, 
horses  and  cattle  of  great  value,  to  wit,  of  the  value 

of  S  ,  died,  and  the  other  horses  and  cattle  were,  by  the  eating 
of  said  poisonous  branches  and  twigs  greatly  injured;  to  the  dam- 
age of  plaintiff  8 

This  form  is  drafted  from  the  case  of  Wilson  r.  Newberry,  L.  E., 
7  Q.  B.  31  ;  S.  C,  1  Eng.  14.  The  declaration  in  that  case  was  de- 
fective. The  liability  of  the  party  on  the  facts  here  set  up  is  ad- 
mitted. Fletcher  v.  Eylands,  L.  R,  3  H.  L.  330;  Tennonl  v.  Gold- 
win,  1  Salk.  360.  When  the  owner  of  land,  without  willfulness  or 
negligence,  uses  his  own  land  in  the  ordinary  manner  of  its  use, 
though  mischief  should  thereby  he  occasioned  to  his  neighbor,  he 
will  not  be  liable  in  damages;  hut  if  he  brings  upon  his  land  any- 
thing which  would  not  naturally  come  upon  it.  and  which  is  in 
itself  dangerous,  and  may  become  mischievous  if  not  kepi  under 
proper  control,  though  in  so  doing  lie  may  act  without  personal 
Willfulness  Or  Degligence,  he  will  he  liable  in  damages  for  any  mis- 

chief  thereby  occasioned.  Eylands  v.  Fletcher,  L.  \l..  '■'>  Jl.  L.  330. 
Jn  this  case  the  plaintiff  owned  a  coal  mine  which  he  was  working 
in  the  usual  way  :  the  defendant  had  a  mill  on  land  near  that  of 
plaintiff's,  and  built  thereon  a  reservoir  for  storing  water  for  his 
mill:  hut  under  the  reservoir  there  were  several  old  vertical 
Bhafts  connecting  with  horizontal  workings  of  an  abandoned  coal 
mine;  the  plaint  ill'  in  his  mining  came  in  contact  with  horizontal 
workings  :  the  vertical  shafts,  which  had  apparently  heen  tilled  up, 
gave  way.  and'  the  water  from  the  reservoir  passed  down  them  and 
along  the  horizontal  workings  into  and  Hooded  the  mine  and  work- 

of  the  plaintiff,  to  his  damage.     Blackburn,  J.,  in  the  court 
below,  as  cited  by  Lord  Cairns,  Lord  Ch.,  uses  the  following  Ian- 


538  FORMS   OF    PETITIONS. 


guage  adopted  by  Lord  Cairns,  L.  Ch. :  "We  think  that  the  true 
rule  of  law  is  (hat  if  a  person  who,  lor  his  own  purposes,  brings 
on  his  land,  and  collects  and  keeps  there  anything  likely  to  do  mis- 
ehiel  if  it  eseapcs,  he  must  keep  it  in  at  his  peril;  and  if  he  does  not 
do  so.  is  "prima  facie  answerable  for  all  damage  which  is  the  natural 
consequence  of  its  escape.  He  can  excuse  himself  by  showing 
thai  the  escape  was  owing  to  the  plaintiff's  default,  or  perhaps 
that  the  escape  was  the  consequence  of  vis  major,  or  the  act  of 
God  ;  but  as  nothing  of  this  sort  exists  here,  it  is  unnecessary  to 
inquire  what  excuse  would  bo  sufficient.  The  general  rule,  as 
above  stated,  seems  on  principle  just.  The  person,  wmose  grass 
or  corn  is  beaten  down  by  the  escaping  cattle  of  his  neighbor,  or 
whose  mine  is  flooded  by  the  water  from  his  neighbor's  reservoir, 
or  whose  cellar  is  invaded  by  the  filth  of  his  neighbor's  privy,  or 
whose  habitation  is  made  unhealthy  by  the  fumes  and  noisome  va- 
pors of  his  neighbor's  alkali  works,  is  damnified  without  any  fault  of 
his  own  ;  and  it  seems  but  reasonable  and  just  that  the  neighbor, 
who  has  brought  something  on  his  own  property  (which  is  not 
naturally  there),  harmless  to  others  so  long  as  it  is  confined  to  his 
own  property,  but  which  he  knows  will  be  mischievous  if  it  gets  on 
his  neighbor's,  should  be  obliged  to  make  good  the  damage  which 
ensues,  if  he  does  not  succeed  in  confining  it  to  his  own  property. 
But  for  his  act  in  bringing  it  there,  no  mischief  could  have  accrued, 
and  it  seems  but  just  that  he  should  at  his  peril  keep  it  there,  so 
that  no  mischief  may  accrue,  or  answer  for  the  natural  and  an- 
ticipated consequences.  And  upon  authority,  this,  wTe  think,  is 
established  to  be  the  law,  whether  the  things  so  brought  bo  beasts, 
or  water,  or  filth,  or  stenches."  Smith  v.  Kenrick,  7  C.  B.  564; 
Baine  V.Williamson,  15  C.  B.,  N.  S.  376. 

On  questions  of  mining,  and  the  rights  and  liabilities  of  the 
owners  of  adjoining  mines,  vide  Williams  v.  Groucott,  4  B.  &  S. 
149;  Imperial  Gas  Co.  v.  Broadbent,  7  H.  L.  Cases,  GOO;  Bamford 
v.  Tumley,  3  B.  &  S.  62;  Tipping  v.  St.  Helen's  Smelting  Co.,  4  B. 
&S.  609;  11  II.  L.  Cases,  642. 

Lord  Cranworth  said,  in  the  above  case  of  Bylands  v.  Fletcher : 
"  In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for 
damage  which  the  plaintiff  may  have  sustained,  the  question  in 
general  is  not  whether  the  defendant  has  acted  with  due  care  and 
caution,  but  whether  his  acts  have  occasioned  the  damage.  This 
is  all  well  explained  in  the  old  case  of  Lambert  v.  Bessey,  reported 
Irv  Sir  Thomas  .Raymond.  Sir  T.  Raym.  421.  And  the  doctrine  is 
founded  on  good  sense.     For  when  one  person,  in  managing  his 


FORMS   OP    PETITIONS.  539 


own  affairs,  causes,  however  innocently,  damage  to  another,  it  is 
obviously  only  just  that  he  should  be  the  party  to  suffer.  He  is 
bound  uti  suo  ut  non  Icedat  alienum.  This  is  the  principle  of  law 
applicable  to  cases  like  the  present,  and  I  do  not  discover  in  the 
authorities  which  were  cited  anything  conflicting  with  it." 

In  this  case  it  was  claimed  for  the  defendant  that  he  was  igno- 
rant of  the  shafts  and  horizontal  working  when  the  reservoir  was 
placed  there,  and  the  giving  away  of  the  filling  in  them  caused  the 
flow  of  water  and  the  injury  complained  of.  But  the  court  held 
that  this  ignorance  made  no  difference  in  his  liability. 

206.    LEAVING   A   HOLE    NEAR   HIGHWAY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that,  heretofore,  to  wit,  on  the         day  of  ,  A.  d.  18     ,  the 

said  defendant  was  the  occupier  and  possessor  of  a  certain  ware- 
house and  a  hoist-hole,  vault,  or  cellar,  situate  in  street,  in 
the  of  ,  in  said  county,  and  adjoining  to  and  within 
feet  of  a  public  highway,  to  wit,  (here  state  the  street  or  highway,) 
and  wrongfully  suffered  the  said  hoist-hole,  vault,  or  cellar  to  be 
and  remain  open  to  said  highway,  to  wit,  to  said  aforesaid, 
without  an\'  light,  railing,  fence,  or  protection  whatever,  so  as  to 
be  dangerous  to  persons  passing  along  said  during  the  hours 
of  darkness,  and  that  the  said  plaintiff,  while  lawfully  passing 
along  said  during  the  hours  of  darkness,  and  Avithout  any 
fault  on  his  part,  fell  into  the  said  hoist-hole,  vault,  or  cellar,  and 
was  greatly  injured  in  his  person,  in  this,  to  wit,  (here  state  the  in- 
jury received?)  and  was  compelled  to  employ  surgeons  to  dress  and 
attend  to  said  injuries  so  received,  at  a  great  expense,  to  wit,  at  the 
expense  of  8  ,  and  was  thereby  rendered  unable  to  attend  to 
his  daily  calling,  but,  on  the  contrary,  was  confined  to  his  bed  and 
house  for  the  space  of  days,  and  has  been  thereby  disabled,  for 
a  long  time  thereafter  being  unable  to  attend  as  usual  to  his  daily 
calling  and  business;  to  his  damage  $ 

Wherefore  the  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  8        ,  his  damages  so  as  aforesaid  sustained. 

.)   11  N,  Attorney  for  Plaintiff. 

This  form  is  takmi  from  the  declaration  in  the  case  of  ffadley  v. 
Taylor  el  al.,  L.  R.,  I  0.  B.  53.  Brie,  C.J. :  "The  plaintiff  seeks 
compensation  for  an  injury  sustained  through  falling  into  a  hole 
on  defendants'  premises.  The  hole  was  nut  upon  the  public  high- 
way, hut  distant,  from  it  aboul  fourteen  het.     1  think,  however, 


540  FORMS   OP   PETITIONS. 


the  defendants  would  be  liable  for  a  nuisance  to  the  highway,  if 
the  excavation  was  so  near  to  it  that  a  person  lawfully  using  the 
way,  and  using  ordinary  caution,  accidentally  slipping,  might  fall 
into  it.  So  the  law  is  laid  down  in  Barnes  v.  Ward,  9  C.  B.  392, 
and  in  numerous  other  cases.  .  .  .  Generally  speaking,  the 
party  responsible  for  a  nuisance  is  the  person  in  the  occupation  of 
the  premises  in  which  the  nuisance  complained  of  exists.  Tt  may 
be  that  others  may  he  liable  also;  hut  the  occupier,  who  probably 
knows  most  about  it,  is  bound  to  see  that  no  dangerous  nuisance  ex- 
ists on  the  premises."  Robins  v.  Jones,  15  C.  B.,  N.  S.  221 ;  Banks 
v.  The  South  Yorkshire  B.  &  Biver  Co.,  3  B.  &  S.  24-1. 

207.    AGAINST    SHIP-OWNERS    POR    NEGLIGENCE    IN    A    COLLISION. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  E  F,  and  G-  H, 
defendants,  for  that  the  said  defendants  were  the  owners  of  a  steam- 
vessel  called  the  ,  lying  at  anchor  at  the  port  of  ,  and 
bound  on  a  voyage  from  that  port  to  the  port  of  ,  in  the 
of  ,  and  thereupon  the  plaintiff  delivered  to  the  said  defend- 
ants, and  said  defendants  received  certain  goods  of  the  plaintiff,  to 
wit,  (here  state  the  articles  shipped,  and  the  value  of  same,)  to  be  by 
them  shipped  on  board  the  said  steam-vessel,  and  safely  and  se- 
curely carried  therein  from  the  said  port  of  to  the  said  port 
of  ,  and  there  to  be  delivered  unto  the  order  of  said  plaintiff, 
(or,  to  the  person  to  whom  assigned,  as  shown  in  bill  of  lading,)  or  his 
assigns,  the  act  of  God,  public  enemies,  pirates,  robbers,  thieves, 
barratry  of  master  or  mariners,  restraint  of  rulers,  fire,  accident,  or 
damage  from  machinery,  boilers,  steam,  or  from  other  goods  by 
contact,  sweating,  leaking,  or  otherwise,  or  accidents,  or  damage 
of  the  seas,  rivers,  and  steam  navigation  of  whatever  nature  or 
kind  soever,  excepted,  he  or  they  paying  freight  for  the  said  goods 
in  cash,  on  ship's  arrival,  free  of  interest,  at  the  rate  of  per  ton  of 
twenty  hundred-weight,  gross  weight,  with  fifteen  percent,  primage 
and  average  accustomed ;  and  that  the  said  defendants  were  not  pre- 
vented from  so  carrying  or  delivering  the  said  goods  by  any  of  the 
perils  or  casualties  aforesaid  ;  yet  the  said  defendants  did  not  safely 
or  securely  carry  or  deliver  the  said  goods,  but  took  such  bad  and 
improper  care  of  their  said  steam-vessel,  and  navigated,  and  di- 
rected, and  managed  the  same  in  so  careless,  negligent,  and  im- 
proper a  manner,  that,  by  and  through  the  carelessness,  negligence, 
mismanagement,  and  improper  conduct  of  the  said  defendants,  by 
their  servants  and  mariners  in  that  behalf,  the  said  steam-vessel 
with  great  force  and  violence  ran  foul  of  and  struck  against  a  cer- 


FORMS   OP   PETITIONS.  541 


tain  other  steam-vessel,  to  wit,  the  Aaxes,  whereby  the  steam-vessel 
of  the  said  defendants,  and  the  plaintiff's  said  goods  on  board  the 
said  steam-vessel,  were  sunk,  and  the  goods  of  the  plaintiff  became 
wholly  lost  to  the  plaintiff;  to  his  damage  $ 

Wherefore  said  plaintiff  demands  judgment  against  said  defend- 
ants for  said  sum  of  3  ,  his  damages,  so  as  aforesaid  sus- 
tained. 

F  W,  Attorney  for  Plaintiff. 

This  petition  is  taken  from  the  report  of  the  case  of  Gill  v.  Gen- 
eral Iron  Screw  Collier  Co.,  L.  E.,  1  C.  P.  GOO.  The  conditions  of 
the  shipment  must  be  according  to  the  bill  of  lading.  This  form 
will  answer  with  very  slight  changes  for  cases  where  goods  have 
been  lost  by  collisions  on  the  Ohio  and  .Mississippi  rivers  and  trib- 
utaries. The  case  is  very  ably  argued  by  counsel  and  fully  con- 
sidered by  the  court.  The  carrying  vessel  is  liable  for  the  loss,  if 
the  collision  occurs  from  her  fault.  Willes,  J. :  "  No  information, 
however,  has  been  given  as  to  the  meaning  to  be  attached  to  gross 
negligence,  in  this  ease;  and  I  quite  agree  with  the  dictum  of  Lord 
Cranworth  in  Wilson  v.  Britt,  11 M.  &  W.  113,  that  gross  negligence 
is  ordinary  negligence  with  a  vituperative  epithet  ;  a  view  held  by 
the  Exchequer  Chamber.  Beal  v.  South  Devon  E,  E.  Co.,  3  H.  & 
C.  337.  Confusion  has  arisen  from  regarding  negligence  as  a  pos- 
itive, instead  of  a  negative  word.  It  is  really  the  absence  of  such 
care  as  it  was  the  duty  of  the  defendants  to  use.  A  bailee  is  only 
bound  to  use  the  ordinary  care  of  a  man,  and  so  the  absence  of  it 
is  called  'gross  negligence.'  A  person  who  undertakes  to  do  some 
work  for  reward  to  an  article,  must  exercise  the  care  of  a  skilled 
workman,  and  the  absence  of  such  care  in  him  is  negligence. 
'Gross.'  therefore,  is  a  word  of  description,  and  not  a  definition,  and 
it  would  have  been  only  introducing  a  source  of  confusion  to  use 
the  expression  'gross  negligence,'  instead  of  the  equivalent, 'a  want 
of  due  care  ami  skill  in  uavigating the  vessel,'  which  was  again  and 

again  used  by  the  lord  chief  justice  in    his  summing  up."      Smith, 

.1..  in  same  case  says  :  •■The  use  of  the  term  gross  negligenceis  only 
fine  way  of  statingthal  less  care  is  required  in  some  cases  than  in 
others,  :.-  in  the  case  of  gratuitous  bailees  ;  and  it  is  more  correct 
and  scientific  to  define  the  degrees  of  care  than  the  degrees  of  neg- 
ligence.'' Vide  also  Dloyd  v.  General  Iron  Screw  (Jollier  Co.,  •'!  II. 
&  C.  _-  l  :  Davia  v.  Garrett,  6  Bing.  716;  Phillips  v.  Clark.  2  C.  B., 
N.  S.  156;  Dixon  v.  Sadler, 5 M. &  W.405;  Smith  v.  Scott,  l  Taunt. 
126;  The  Aaxes,  L5  .Moore  P.  0.  122;  Tuff  v.  Warman,  2  C.  B.,N. 


542  FORMS   OF   PETITIONS. 


S.  740 ;  5  C.  B.,  N.  S.  573  ;  Todd  v.  Ritchie,  1  Stark.  240  ;  Phyn  v. 
Eoyal  Exch.  As.  Co.,  7  Term,  505;  Wyld  v.  Pickford,  8  M.  &  W. 
I  i:; ;  Worms  y.  Storey,  11  Exeh.  127  ;  Scordet,4  Bing.  007  ;  Daken 
v.  Oxley,  15  C.  B.,  N.  S.  040  ;  Jones  v.  Pitcher,  3  Stewart  &  Porter, 
135  ;  Lyons  r.  Mills,  5  East,  428  ;  Wilson  v.  Eankin,  G  B.  &  S.  208 ; 
L.  E.,  1  Q.  B.  1G2. 

20S.    AGAINST    OWNER   OF    STORE    FOR    LEAVING    UNFENCED     A     HOLE 
IN    FLOOR   OF   STORE. 

The  said  AB,  plaintiff,  complains  of  the  saidC  D,  defendant,  for 
that  before  and  at  the  time  of  the  happening  of  the  grievances  and 
injuries  hereinafter  stated,  the  said  C  D  was  possessed  of  a  certain 
high  building,  situate  on  street,  in  the  city  of  ,  in  the  county 
of  ,  containing  several  floors,  used  by  defendant  as  a  sugar  re- 

finery (or,  warehouse,  store-house,  as  the  case  maybe,)  in  the  in- 
terior of  which  was  a  shaft  or  shoot  passing  from  the  basement  of 
said  -building  upward  through  the  several  floors  thereof,  and  which 
said  shaft  or  shoot  was  highly  dangerous  to  persons  entering  the 
said  building,  who  might  be  unacquainted  with  the  same,  as  the 
said  defendant  then  well  knew  ;  and  that  the  plaintiff,  then  being 
unacquainted  with  the  said  premises,  was,  on  the  day  of  , 

A.  d.  18  ,  employed  by  said  defendant  to  enter  the  said  building 
and  execute  certain  work  therein  in  his  trade  of  a  gas-fitter  (or, 
joiner,  or  other  trade.)  after  darkness  had  set  in,  in  the  evening  of 
said  day,  for  said  defendant,  upon  one  of  the  upper  floors  of  said 
building  ;  j'ct  the  said  defendant,  wholly  disregarding  his  duty  in 
the  premises,  wrongfully,  negligently,  and  improperly  allowed 
said  shaft  or  shoot  to  remain  and  be  open,  unfenced,  unguarded, 
and  unlighted,  while  the  plaintiff  was  so  lawfully  engaged  there  in 
his  said  business,  and  that  said  plaintiff,  by  reason  thereof  and  with- 
out any  fault  on  his  part,  and  whilst  lawfully  there  in  his  said 
business,  fell  down  through  said  shaft  or  shoot,  and  was  precipi- 
tated through  the  same  to  the  basement  of  said  building  and  was 
thereby  greatly  hurt  and  injured  in  this,  to  wit :  (here  state  inju- 
ries,') and  by  reason  of  said  injuries  said  plaintiff  was  disabled  from 
work  for  the  space  of  days,  and  compelled  to  pay  large  sums 

of  money  for  the  services  of  a  surgeon,  nurses,  and  other  assistance 
in  nursing,  watching  with,  and  taking  care  of  him  while  so  laid  up, 
to  wit,  to  the  amount  of  $  ,  and  other  injuries  sustained  ;  to 

the  damage  of  the  plaintiff  $ 

Wherefore  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained. 

S  N,  Attorney  for  Plaintiff 


FORMS    OP   PETITIONS.  543 


This  petition  is  copied  from  the  declaration  in  the  case  of  Inde- 
manr  v.  Dames  L.  E.,  1  C.  B.  274.  The  court  held  that  inasmuch 
as  the  plaintiff  was  upon  the  premises  on  lawful  business,  and  the 
hole  or  shoot  was  from  its  nature  unreasonably  dangerous  to  per- 
sons not  usually  employed  there,  but  having  a  right  to  go  there, 
the  defendant  was  guilty  of  a  breach  of  duty  toward  him  in  suffer- 
ing the  hole  to  be  unlenced.  Willes,  J. :  ;;  The  common  ease  is 
that  of  a  customer  in  a  shop  ;  but  it  is  obvious  that  this  is  only  one 
of  a  class;  for,  whether  the  customer  is  actually  chaffering  at  the 
time,  or  actually  buys  or  not.  he  is,  according  to  an  undoubted 
course  of  authority  ami  practice,  entitled  to  the  exei'cise  of  reason- 
able care  by  the  occupier  to  prevent  damage  from  unusual  dangers 
of  which  the  occupier  knows,  or  ought  to  know,  such  as  a  trap- 
door left  open,  unlenced.  and  unlightecl.  Lancaster  Canal  Co  r. 
Parnaly.  11  Ad.  &  E.  223;  Chapman  v.  Kothwell,  E.  B.  &  E.  168. 
This  protection  does  not  depend  upon  the  fact  of  a  contract  being 
entered  into  in  the  way  of  the  shopkeeper's  business  during  the 
stay  of  the  customer,  but  upon  the  fact  that  the  customer  has  come 
into  the  shop  in  pursuance  of  a  tacit  invitation  given  by  the  shop- 
keeper with  a  view  to  business  which  concerns  himself.  .  .  We 
think  this  argument  fails,  because  the  capacity  in  which  the  plaint- 
iff was  there,  was  that  of  a  person  on  lawful  business  in  the  course 
of  fulfilling  a  eontracl  in  which  both  the  plaintiff  and  the  defend- 
ant had  an  interest,  and  not  upon  bare  permission.  .  .  The  class 
to  which  the  customer  belongs  includes  persons  who  go  not  as  mere 
volunteers,  or  licensees,  or  guests,  or  servants,  or  persons  whose 
employment  is  such  that  danger  may  he  considered  as  bargained 
for.  but  who  go  upon  business  which  concerns  the  occupier,  and 
upon  his  invitation,  express  or  implied.  And  with  respect  to  such 
a  visitor  at  least,  we  consider  it  settled  law,  that  he.  using  reason- 
able care  on  his  pail  for  his  own  safety,  is  entitled  to  expect  that 
tic-  occupier  shall  on  his  part  use  reasonable  care  to  prevent  damage 
from  unusual  danger,  which  he  knows,  or  ought  to  know:  and  that 
where  there  is  evidence  of  neglect,  the  question  whether  such  rea- 
sonable care  has  been  taken  by  notice,  lighting,  guarding,  or  other- 
wise, and  whether  there  was  contributory  negligence  in  the  Bufferer, 
must  be  determined  by  a  jury  as  a  mailer  of  faet."  Vide  Wilkinson 
r.  Pairrie,  1  II.  &  C.  633;  7  il.  &  .V  !>:i7;  Balch  r.  Smith,  7  II  &  X. 
736.  "  The  distinction  i>."  say-  Erie,  0.  .1..  in  Chapman  y.  Kothwell, 
E.  B.  &  B.  L68,  •between  the  case  of  a  visitor  (as  was  the  case  in 
Bouthcote  r.  Stanley,  1 H.  &  N.  247,)  who  must  take  care  of  himself, 
and  customer,  who.  as  one  oJ  the  public,  is  invited  for  the  purposes 


544  FORMS   OF   PETITIONS. 


of  business  carried  on  by  the  defendant."  McCarthy  v.  Younge,  6  IT. 
&  N.  329  :  Seymour  v.  Maddox,  16  Q.  B.  326;  Haunscl  v.  Smyth,  7 
C.  B.,  K  S.  731 ;  Clarke  v.  Holmes,  7  II.  &  N.  937  ;  Toamey  v.  L. 
&  Bri.  R.  R.  Co.,  3  C.  B.,  K  S.  146;  Sullivan  v.  Waters,  14  Irish 
C.  L.  460;  Corly  v.  Hill,  4  C.  B.,  K  S.  556;  Barnes  v.  Ward,  9 
C.  B.  392. 

209.    FOR  CARELESSLY  MINING  SO    AS   TO    INJURE   THE   OWNER  OF   THE 
SURFACE,    BY    REVERSIONER. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  at  and  before  the  committing  of  the  grievances  hereinafter 
mentioned,  certain  houses  were  in  possession  of  divers  persons  as 
tenants  thereof  to  the  plaintiff,  the  reversion  therein  respectively 
then  and  still  belonging  to  the  plaintiff,  which  houses  had  been 
erected  and  standing  for  a  long  space  of  time,  to  wit,  for  the  space 
of  twenty-one  years  before  and  at  the  time  of  the  committing  the 
grievances  hereinafter  mentioned  ;  and  the  plaintiff  before  and  at 
the  time  of  committing  the  grievances  hereinafter  mentioned,  was 
rightfully  entitled  to  have  said  houses  in  which  he  was  so  interested 
as  aforesaid,  and  the  foundations  thereof,  supported  by  the  soil 
and  land  contiguous  and  near  to  the  same,  and  also  to  have  the 
foundations  of  the  said  houses,  and  the  land  whereupon  the  same 
were  erected  and  standing,  sufficiently  supported  by  the  minerals 
lying  under  the  said  last-mentioned  land;  yet  the  defendant,  well 
knowing  the  premises,  wrongfully  and  negligently  worked  certain 
mines  under  the  land  on  which  said  houses  were  erected,  and 
under  land  contiguous  and  near  thereto,  and  removed  the  coals  and 
minerals  from  the  said  several  mines  without  leaving  any  sufficient 
support  to  the  said  houses,  so  that,  by  reason  thereof,  the  founda- 
tion of  the  said  houses,  in  which  the  plaintiff  was  so  interested  as 
aforesaid,  became  and  were  weakened,  damaged,  and  undermined, 
and  became  incapable  of  supporting  the  said  houses ;  and  the  said 
houses  cracked,  sank  in,  and  became  and  were  dilapidated  and  un- 
safe; and  by  means  of  the  premises,  divers  of  the  said  houses  be- 
came and  were  unfit  for  habitation  for  considerable  periods  of 
time,  and  became  and  were  of  much  less  value  to  the  plaintiff  than 
they  otherwise  would  have  been;  and  by  reason  thereof  and 
thereby  the  plaintiff  has  been  injured  and  prejudiced  in  his  rever- 
sionary estate  and  interest ;  to  his  damage  $ 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  $         ,  his  damages  so  sustained. 

T  J,  Attorney  for  Plaintiff. 


FORMS   OF   PETITIONS.  545 


The  above  form  is  substantially  copied  from  that  in  the  ease  of 
Kowbotham  v.  Wilson,  92  Eng.  C.  L.  122 ;  S.  C,  8  Ellis  &  Bl.  123. 
The  plaintiff  did  not  recover  on  account  of  seme  covenants  be- 
tween the  owner  of  the  surface  and  the  owner  of  the  minerals. 
Watson,  B.,  says:  "  It  is  established  by  authorities  (Wilkinson  v. 
Proud,  11  M.  &  W.  33).  that  the  coal  mines,  when  conveyed,  become 
a  separate  tenement.  The  land  above  and  the  coal  beneath  become 
separate  tenements,  with  all  the  incidents  of  separate  ownership. 
The  same  rules  of  law  apply  in  such  ease  as  to  the  right  of  Intend 
support  of  adjoining  lands,  which  is  not  an  easement.  If,  by  dig- 
ging, the  adjoining  land  is  let  down,  the  right  to  compensation  is 
on  the  ground  that  the  adjoining  owner  could  not  use  his  own  land 
to  the  prejudice  of  his  neighbor,  not  on  the  ground  of  the  disturb- 
ance of  an  easement.  2  Bol.  Abr.  5(J4.  The  course  of  precedents 
shows  this;  for  it  is  not  necessaiy  to  allege,  in  such  case,  that  the 
plaintiff  had  the  right  to  support.  Earl  of  Lonsdale  v.  Littledale, 
2  II.  Bl.  267,  and  the  declaration  and  judgment  in  Humphries  v. 
Bragden,  12  Q.  B.  739:  S.  C,  64  Eng.  C.  L.  739;  with  this  dis- 
tinction that  the  right  to  support  to  a  building  upon  the  land  is  ac- 
quired by  twenty  years  existence,  whereas  the  land  is  entitled  to 
support  in  its  original  state.  In  Harris  v.  Byding,  5  M.  &  W.  GO, 
it  was  held  that,  where  A  being  seized  in  fee  of  certain  real  estate, 
granted  the  land  to  P,  his  heirs  and  assigns,  reserving  to  himself, 
his  heirs  and  assigns,  "all  and  all  manner  of  coals;  seams  and 
veins  of  coal,  iron  ore,  and  all  other  mines  and  minerals  and 
metals,  which  then  were,  or  at  anytime  and  from  time  to  time 
thereafter,  should  be  discovered  in  and  upon  said  premises,  to  dig, 
delve,  search  for,  and  get,  etc.,  the  said  mines  and  every  part  thereof, 
and  to  sell  and  dispose  of,  take  and  convey  away  the  same  at 
their  free  will  and  pleasure;  and  also  to  sink  shafts,  etc.,  for  the 
raising  up  works,  carrying  away,  and  disposing  of  the  same  or 
any  part  thereof,  making  a  fair  compensation  to  P,  for  the  damage 
to  be  done  to  the  surface  of  the  premises,  and  the  pasture  and  crops 
growing  thereon,"  under  this  reserval  ion  A  was  not  entitled  to  take 
all  the  mines,  but  only  so  much  as  he  could  get,  leaving  a  reason- 
able support  to  the  surface.  Parke,B.:  '-It  is  clearly  the  meaning 
and  intention  of  the  grantor  that  the  surface  shall  be  fully  and 
1m  neficially  held  and  enjoyed  by  the  granteo,  he  reserving  to  him- 
si  if  all  the  mines  and  vein-  of  coal  and  iron  ore  below.  By  rea- 
sonable intendment,  therefore,  the  grantor  can  be  entitled  under 
the  n  scrvation  only  to  so  much  of  the  mine  below  as  is  consistent 
vol.  [—35 


546  FORMS   OP    PETITIONS. 


with  the  enjoyment  of  the  surface,  according  to  the  true  intent 
of  the  parties  to  the  deed  ;  that  is,  he  only  reserves  to  himself  so 
much  of  the  mines  and  minerals  as  could  be  got,  leaving  a  reason- 
able support  to  the  surface.  '. •  .  .  It  became  necessary  to  inquire 
whether  or  not  he  was  bound  to  leave  support  for  an  additional 
superincumbent  weight  upon  the  surface;  probably  he  would  not 
be."  As  to  the  compensation  clause,  the  court  held  that  had  refer- 
ence solely  to  the  use  of  the  surface,  and-  had  no  reference  to  the 
underground  mining.  Humphries  v.  Bragden,  12  Q.  B.  739  ;  S.  C, 
64  Eng.  C.  L.  739  ;  Smart  v.  Morton,  5  E.  &  Bl.  30 ;  S.  C,  85  Eng. 
C.  L.  30 ;  Caledonia  R.  W.  Co.  v.  Sprot,  2  Macq.  H.  L.  Cas.  449. 
In  Smart  v.  Norton,  supra,  Lord  Campbell,  Ch.  J.,  says:  "Prima 
facie,  the  owner  of  the  surface  is  entitled  to  support  from  the  sub- 
jacent strata  ;  and  if  the  owner  of  the  minerals  work  them,  it  is 
his  duty  to  leave  sufficient  support  for  the  surface  in  its  natural 
state.  But  the  prima  facie  rights  and  obligations  of  the  owner  of 
the  surface  and  of  the  minerals  may  be  varied  by  the  production 
of  title  deeds  or  by  other  evidence."  Jeffries  v.  William,  5  Exch. 
792  ;  Helton  v.  Earl  of  Granville,  5  Q.  B.  701 ;  S.  C,  48  Eng.  C.  L.  701. 
The  conveyance  of  land  with  buildings  on  it,  with  reservations 
of  coal  and  minerals  like  the  above',  would  seem  to  require  a  suffi- 
cient support  for  soil  and  buildings.  This  is  not  the  case,  it  seems, 
when  land  is  conveyed  with  no  buildings,  unless  buildings  have 
been  erected  for  twenty  years. 

210.     FOR   SELLING   DEFECTIVE    GUN,  BY   WHICH   PLAINTIFF   INJURED. 

.  The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  E  E,  the  father  of  said  plaintiff,  on  the  day  of 
,  A.  d.  18  ,  at  the  request  of  said  defendant,  bargained  with 
said  defendant  to  buy  of  him  a  certain  gun  for  the  use  of  himself 
and  his  sons,  at  and  for  a  certain  price,  to  wit,  for  the  sum  of  $  , 
and  that  the  said  defendant  then  by  falsely  and  fraudulently  war- 
ranting the  said  gun  to  have  been  made  by  one  ,  and  to  be  a 
good,  safe,  and  secure  gun,  then  sold  the  same  to  the  said  E  F,  for 
the  use  of  himself  and  his  sons,  for  the  said  sum  of  $  .  then  paid 
by  said  E  F  to  the  said  defendant  for  said  gun  ;  and  the  said 
plaintiff  avers  that,  in  truth  and  in  fact,  the  said  defendant  was 
guilty  of  a  great  breach  of  duty,  and  of  willful  deceit,  negligence, 
and  improper  conduct,  in  this,  that  the  said  gun,  at  the  time  of 
said  warranty  and  sale,  was  not  made  by  said  ,  nor  was  it  a 
good,  safe,  and  secure  gun,  but  on  the  contrary  thereof,  was  made 
by  a  maker  very  inferior  as  a  gun  maker  to  said  and  was 


FORMS   OF    PETITIONS.  547 


then  and  at  all  times  a  very  bad,  unsafe,  ill-manufactured,  and 
dangerous  gun,  and  wholly  unsound  and  of  very  inferior  ma- 
terials ;  of  all  which  premises  the  said  defendant,  at  the  time  of 
the  making  of  said  warrant}',  and  of  the  said  sale,  had  full  knowl- 
edge and  notice,  and  the  said  plaintiff  in  fact  says  that  he  knowing 
and  confiding  in  said  warranty,  did  use  ami  employ  said  gun.  which 
hut  for  said  warranty  he  would  not  have  done  ;  and  that  afterward, 
to  wit,  on  the         day  of  ,  a.  d.  18     ,  the  said  gun  then  being 

in  the  hands  and  use  of  said  plaintiff,  by  reason  and  wholly  in  con- 
sequence of  the  weak,  dangerous,  and  insufficient  and  unworkman- 
like manufacture,  construction,  and  materials  thereof,  then  and 
whilst  the  said  gun  was  so  in  use  by  the  said  plaintiff,  burst  and 
exploded,  became  shattered,  and  went  to  pieces:  whereby  and  by 
reason  whereof  the  plaintiff  was  greatly  injured,  cut,  wounded, 
and  maimed,  and  wholly  by  means  of  the  premises,  breach  of  duty, 
and  improper  conduct  of  the  defendant,  lost,  and  is  forever  de- 
prived of  the  use  of  his  hands,  and  other  wrongs  and  injuries  said 
plaintiff  has  sustained  ;  to  his  damage  $ 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  $         ,  his  damages  so  sustained. 

T  R,  Attorney  for  Plaintiff. 

The  above  is  a  copy  of  the  declaration  in  the  case  of  Langridge 
r.  Levy.  -1  M.  &  W.  519;  S.  C,  4  M.  &  W.  337.  If  the  father 
had  been  hurt  instead  of  the  son.  he  could  have  recovered  on  the 
contract  of  warranty;  but  the  plaintiff  (a  son)  was  not  a  party  to 
that  contract,  ami  therefore  could  not  sue  upon  it.  But  as  he 
bought  the  gun  for  the  use  of  his  sons,  as  well  as  of  himself,  Parke. 
B.,  says  :  "  We  are  not  prepared  to  reel  the  case  upon  one  of  the 
grounds  on  which  the  learned  counsel  tor  the  plaintiff  sought  to 
support  his  right  of  action,  namely,  that  wherever  a  duty  is  im- 
posed upon  a  person  by  contract  or  otherwise,  and  that  duty  is 
violated,  any  one  who  is  injured  by  the  violation  of  it.  may  have  a 
remedy  againsl  the  wrong-doer.  We  think-  this  action  may  he  sup- 
ported  without  laying  down  a  principle  which  would  lead  to  an 
indefinite  extent  of  Liability,  so  strongly  put  in  the  course  of  the 
argument  on  the  pari  of  the  defendant  ;  and  we  should  pause  be- 
fore we  made  a  precedent  by  our  decision,  which  would  he  an 
authority  for  an  action  against  the  vendors,  even  of  such  instru- 
ments and  articles  as  are  dangerous  in  themselves,  at  the  suit  of 
any  "person  whomsoever  into  whose  hands  they  might  happen  to 

pass,   and    who   should    he    injured    thereby.      If  the    instrument   in 

tion,  which   i>  not  of  itseli  dangerous,  bul  which  requires  an 


548  FORMS   OF    PETITIONS. 


act  to  bo  done — that  is,  to  be  loaded — in  order  to  make  it  so,  had 
been  simply  delivered  by  the  defendant,  without  any  contract  or 
representations  on  his  part  to  the  plaintiff,  no  action  would  have 
been  maintainable  for  any  subsequent  damage  which  the  plaintiff 
might  have  sustained  by  the  use  of  it;  but  if  it  had  been  de- 
livered by  the  defendant  to  the  plaintiff  for  the  purpose  of  being 
so  used  by  him,  with  an  accompanying  representation  to  him  he 
might  safely  so  use  it,  and  that  representation  had  been  false  to  the 
defendant's  knowledge,  and  the  plaintiff  had  acted  upon  the  faith 
of  its  being  true,  and  had  received  damages  thereby,  then  there  is 
no  question  but  that  an  action  would  have  lain,  upon  the  principle 
of  a  numerous  class  of  cases,  of  which  the  leading  one  is  that  of 
Polsby  v.  Freeman,  3  Term,  51 ;  which  principle  is,  that  a  mere 
naked  falsehood  is  not  enough  to  give  a  right  of  action  ;  but  if  it 
is  a  falsehood,  told  with  an  intention  that  it  should  be  acted  upon 
by  the  party  injured,  and  that  act  must  produce  damage  to  him; 
if,  instead  of  being  delivered  to  the  plaintiff  immediately,  the  in- 
strument had  been  placed  in  the  hands  of  a  third  person,  for  the 
•purpose  of  being  delivered  to,  and  then  used  by,  the  plaintiff,  the  like 
false  representation  being  knowingly  made  to  the  intermediate 
person  to  be  communicated  to  the  plaintiff,  and  the  plaintiff  had 
acted  upon  it,  there  can  be  no  doubt  but  that  the  principle  would 
equally  apply,  and  the  plaintiff  would  have  his  remedy  for  the 
deceit.  Nor  could  it  make  any  difference  that  the  third  person 
also  was  intended  by  the  defendant  to  be  deceived ;  nor  does  there 
seem  to  be  any  substantial  distinction  if  the  instrument  is  de- 
livered, in  order  to  be  so  used  by  the  plaintiff,  though  it  does  not 
appear  that  the  defendant  intended  the  false  representation  itself 
to  be  communicated  to  him.  There  is  a  false  representation  made 
by  the  defendant,  with  a  view  that  the  plaintiff  should  use  the  instru- 
ment in  a  dangerous  way,  and,  unless  the  representation  had  been 
made,  the  dangerous  act  would  never  have  been  done.  .  .  .  The 
defendant  has  knowingly  sold  the  gun  to  the  father,  for  the  purpose 
of  being  used  by  the  plaintiff  by  loading  and  discharging  it,  and  has 
knowingly  made  a  false  warranty,  that  it  might  be  safely  done,  in 
order  to  effect  the  sale  ;  and  the  plaintiff,  on  the  faith  of  that  war- 
ranty, and  believing  it  to  be  true,  used  the  gun,  and  thereby  sus- 
tained the  damage  which  is  the  subject  of  this  complaint."  So 
the  action  was  sustained.  This  judgment  was  sustained  in  the 
Exchequer  Chamber,  4  M.  &  W.  337.  Lord  Denman,  C.  J. :  "  We 
affirm  the  judgment  on  the  ground  stated  by  Parke,  B.,  that  as 
there  is  fraud  and  damage,  the  result  of  that  fraud  not  from  an 


FORMS   OF    PETITIONS.  519 


act  remote  and  consequential,  but  one  contemplated  by  tbe  de- 
fendant at  the  time  as  one  of  its  results,  the  party  guilty  of  the 
fraud  is  responsible  to  the  party  injured." 

This  case  came  up  for  consideration  in  Winterbottom  v.  Wright, 
10  M.  &  W.  109.  In  this  case  A  contracted  with  postmaster-gen- 
eral to  provide  a  mail-coach  to  convey  the  mail-bags  along  a  cer- 
tain road  ;  and  B  and  others  agreed  to  horse  the  coach  along  the 
line.  B  and  his  associates  hired  C  to  drive  the  coach  ;  C  was  in- 
jured from  the  coach  breaking  down  while  he  was  driving  the 
same,  from  latent  defects.  It  was  held  he  could  not  recover  against 
A  for  the  injury.  Alderson,  B.,  said  :  "  The  only  safe  rule  is  to 
confine  the  right  to  recover  to  those  who  enter  into  the  contract ; 
if  we  go  one  step  beyond  that,  there  is  no  reason  why  we  should 
not  go  fift}'.  .  .  .  Then  it  is  urged  that  it  falls  within  the 
principle  of  the  case  of  Levy  v.  Langridge.  But  the  principle  of 
that  case  was  simply  this,  that  the  father  having  bought  the  gun 
for  the  very  purpose  of  being  used  by  the  plaintiff,  the  defendant 
made  representations  by  which  he  was  induced  to  use  it."  The 
case  was  pressed  upon  the  court  again  in  the  case  of  Blakemore  v. 
The  Bristol  and  Exeter  R.  R.  Co.,  8  Ellis  &  Black.  1035  ;  S.  C,  92 
Eng.  (J.  L.  1035.  In  that  case,  the  railroad  had  a  crane  for  unload- 
ing stone  at  a  station  ;  the  consignee  was  notified  to  unload  certain 
stone  consigned  to  him;  in  so  doing,  he  used  the  crane,  and,  being 
defective,  it  broke  and  killed  the  plaintiff's  intestate.  It  was 
held,  that  if  the  defendant  had  loaned  the  crane  to  intestate,  the 
plaintiff  might  have  recovered  ;  and  even  if  the  intestate  had  been 
one  the  consignee  had  brought  to  aid  in  unloading,  he  might  have 
recovered;  but  he  was  one  who  had  no  connection  with  the  con- 
tract, having  been  induced,  while  unloading,  to  assist  in  so  doing. 
The  defendant  did  not  know  he  was  to  aid,  and  hence  he  could 
not  come  within  the  scope  of  the  original  agreement.  The  prin- 
ciple, therefore,  is  this  :  If  one  contracts  with  another  for  a  thing, 
with  the  understanding  that  it  is  got  for  the  use  of  the  buyer  and 
the-.'  other  persons,  and  false  representations  are  knowingly  made' 
to  induce  the  sale,  both  the  buyer  and  the  other  persons  who  were 
to  use  it.  may  sue  the  vendor  or  Lender  for  any  injury  sustained  by 
reason  of  such  defect.     The  reason  of  the  rule  is  that  these  parties 

all    come   within    the   scope    of   the   agreement,   and    the   defendant 

knows  that  they  may  all  use  it  on  reliance  upon  this  representa- 
tion*    In  the  lasl  case,  Blakemore  was  not  presenl  with  the  con- 
signee and   the   1\vo  hands  he  broughl  with  him.  and    the   railroad 
;   did  not  know  that  lie  was  to  be'  employed;  and  hence  he 


550  FORMS   OP   PETITIONS. 


could  not  recover.  The  same  rule  applies  to  a  loan.  In  the  French 
civil  codo  act,  1871,  the  law  is  thus  declared:  "When  a  thing 
which  has  been  loaned  has  such  defects  that  it  may  cause  an  injury 
to  him  who  makes  use  of  it,  the  lender  is  responsihlc,  if  ho  knew 
of  (he  defects  and  did  not  notify  tho  borrower."  This  was  applied 
in  the  last  caso  as  good  law,  as  all  our  law  upon  bailment  came 
from  the  civil  law. 

211.    IN    KILLINO   A   FETTERED   ASS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  before  and  at  the  time  of  the  committing  of  the  grievances 
thereinafter  mentioned,  to  wit,  on  the  day  of  A.  r>.  18     , 

the  said  plaintiff  was  lawfully  possessed  of  a  certain  donkey,  (or, 
horse,  cow,  ox,  or  other  animal,  as  the  case  may  be,)  which  said 
donkey  of  the  plaintiff  was  then  lawfully  in  a  certain  highway, 
and  that  the  said  defendant  was  then  possessed  of  a  certain  wagon 
and  certain  horses  of  the  defendant  drawing  tho  same,  which  said 
wagon  and  horses  of  the  defendant  were  then  under  the  care,  gov- 
ernment, and  direction  of  one  E  F,  then  being  the  servant  and  in 
the  employ  of  said  defendant,  in  and  along  the  said  highway ; 
nevertheless  the  defendant,  by  his  said  servant,  so  carelessly,  neg- 
ligently, unskillfully,  and  improperly  governed  and  directed  his 
said  wagon  and  horses  that,  by  and  through  the  carelessness,  neg- 
ligence, unskillfulness,  and  improper  conduct  of  said  defendant,  by 
his  said  servant,  the  said  wagon  and  horses  of  the  defendant  then 
ran  and  strdck  with  great  violence  against  the  said  donkey  of  tho 
plaintiff,  and  thereby  then  wounded,  crushed,  and  killed  the  same  ; 
to  the  damage  of  said  plaintiff  $ 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for  said 
gum  of  $        ,  his  damages  so  as  aforesaid  suffered  and  sustained. 

E  F,  Attorney  for  Plaintiff. 

The  above  form  is  taken  from  the  report  of  the  case  of  Davies  v. 
Mann,  4  Mees.  &  Wels.  54G.  The  donkey  was  fettered  and  turned 
into  the  highway,  where  he  might  lawfully  be;  at  least  it  was  so 
averred  and  not  denied.  It  was  claimed  by  defendant  that  here 
was  negligence  on  the  part  of  tho  plaintiff  in  turning  out  a  fettered 
donkey  into  the  road,  whereby  it  could  not  easily  get  out  of  the  way. 
Erskine,  J.,  charged  tho  jury  that,  though  the  act  of  the  plaintiff, 
in  leaving  the  donkey  on  the  highway  so  fettered  as  to  prevent  his 
getting  out  of  the  way  of  carriages  traveling  along  it,  might  be 
illegal :  still,  if  the  proxiihate  cause  of  the  injury  was  attributable 


FORMS   OF    PETITIONS.  551 


to  the  want  of  proper  conduct  on  the  part  of  the  driver  of  the 
wagon,  the  action  was  maintainable  against  the  defendant;  and 
that,  if  they  thought  that  the  accident  might  hare  been  avoided 
by  the  exercise  of  ordinary  care  on  the  part  of  the  driver,  to  find 
for  the  plaintiff.  The  jury  found  for  the  plaintiff.  On  a  motion 
for  a  new  trial.  Lord  Abinger,  C.  B.,  said :  "lam  of  opinion  that 
there  ought  to  be  no  rule  in  this  case.  The  defendai.t  has  not  de- 
nied that  the  ass  was  lawfully  in  the  highway,  and  therefore  we 
must  assume  it  to  have  been  lawfully  there ;  but  even  were  it 
otherwise,  it  would  have  made  no  difference  ;  for,  as  the  defendant 
might,  by  proper  care,  have  avoided  injuring  the  animal,  and  did 
not,  he  is  liable  for  the  consequences  of  his  negligence,  though  the 
animal  may  have  been  improperly  there."  Parke,  B.,  said  :  "  This 
subject  was  fully  considered  by  this  court  in  the  case  of  Bridge  v. 
The  Grand  Junction  Railway  Co.,  3  Mees.  &  Wels.  24G,  where,  as 
appears  to  me.  the  correct  rule  is  laid  down  concerning  negligence, 
namely,  that  the  negligence  which  is  to  preclude  a  plaintiff  from 
recovering  in  an  action  of  this  nature,  must  be  such  as  that  he 
could  by  ordinary  care  have  avoided  the  consequences  of  the  de- 
fendant's negligence.  I  am  reported  to  have  said  in  that  case,  and 
I  believe  quite  correctly,  that  the  rule  of  law  is  laid  down  with 
perfect  correctness  in  the  case  of  Butterfield  v.  Forrester,  11  East, 
GO,  that,  although  there  may  have  been  negligence  on  the  part  of 
the  plaintiff,  yet.  unless  he  might,  by  the  exercise  of  ordinary  care, 
have  avoided  the  consequences  of  the  defendant's  negligence,  he 
i  it  led  to  recover.  If,  by  oi'dinary  care,  he  might  have  avoided 
tin  in.  he  is  the  author  of  his  own  wrong."  lie  then  states  the 
charge,  and  proceeds:  "All  that  is  perfectly  correct;  for,  although 
\\:<-  a—  may  have  been  wrongfully  there,  still  the  defendant  was 
bound  to  go  along  the  road  at  sueh  a  pace  as  would  be  likely  to 
prevent  mischief.  Were  this  not  so,  a  man  might  justify  the 
driving  over  goods  left  on  a  public  highway,  or  over  a  man  lying 
asleep  there,  or  tin;  purposely  running  against  a  carriage  on  the 
wrong  side  of  the  road." 

The  rule  where  negligence  on  the  part  of  the  plaintiff  will  pre- 
vent a  recovery,  is  a  negligence  occurring  at  the  time  of  the  acci- 
dent, as  where  one  is  injured  by  an  obstruction  in  the  highway. 
ji  can  noi  recover  if  he,  by  proper  care,  might  have  avoided  the 
•  ni.  Butterfleld  v.  Forrester,  11  East,  60.  Or  in  the  case  of 
the  collision  of  ve  sela  or  steamboats.  Here  both  parties  are  act- 
and  if  the  collision  happens  from  the  fault  of  both,  neither 
ran  recover.     Vinnall  v.  Garner,  1  Or.  &  M.  21 ;  S.  P.,  Simpson  c. 


552  FORMS   OF   PETITIONS. 


Hand,  6  Wharton,  311 ;  Rathburn  v.  Payne,  19  Wend.  399 ;  Barnes 
r.  Cole,  21  11..  L88;  Hatfield  o.  Rover,  21  lb.  615.  But,  in  Brownell 
r.  Flayler,  5  Hill,  282,  it  was  held  that  even  where  there  had  been 
mutual  oeglect,  the  plaintiff  might  recover,  if  the  evidence  showed 
intentional  wrong  on  the  part  of  the  defendant.  B.  &  I.  JR.  R.  Co. 
r.  Snyder,  18  Ohio  St.  399 ;  Beisiegel  v.  K  Y.  Central,  40  K  Y.  9  ; 
Kerwhacker  v.  ('in.,  Col.  &  Clev.  R.  11.  Co.,  3  Ohio  St.  172;  Tim- 
mons  r.  The  Central  Ohio  R.  R.  Co.,  G  lb.  105,  per  Scott,  J. ;  G  lb. 
109.  In  Trow  v.  Vermont  Central  R.  R.  Co.,  2-4  Vt.  487,  the  law 
is  thus  stated  :  "  Where  there  has  been  mutual  negligence,  and  the 
negligence  of  each  party  was  the  proximate  cause  of  the  injury, 
no  action  whatever  can  be  sustained.  In  the  use  of  the  words, 
proximate  cause,  is  meant  negligence  occurring  at  the  time  the  in- 
jury happened.  In  such  case,  no  action  can  be  sustained  by  either, 
for  the  reason  that  as  there  can  be  no  apportionment  of  damages, 
there  can  be  no  recovery.  Vide  also'Puterbaugh  v.  Reasor,  9  Ohio 
St.  484 ;  Wilcox  v.  Rome,  W.  &  Og.  R.  11.  Co.,  39  K  Y.  358 ;  Dick- 
son v.  McCoy,  39  N.  Y.  400. 

212.     ALLOWING   WATER    FROM    A    ROAD    TO    FLOW    INTO   A    COLLIERY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  before  the  committing  of  the  grievances 
hereinafter  mentioned,  to  wit,  on  the  day  of  ,  A.  D.  18     , 

was  possessed  of  certain  real  estate  situate  in  said  county  of  , 

to  wit,  (here  describe  the  premises,*)  together  with  certain  coal  mines, 
worked  under  and  in  said  premises,  and  certain  tools  used  in  work- 
ing said  mine,  and  that  said  defendant  was  the  owner  of  a  certain 
turnpike  road,  running  from  to  ,  and  over  and  across 

and  adjoining  the  premises  of  said  plaintiff;  and  that  said  de- 
fendant was  bound  to  keep  said  turnpike  in  such  repair  and  con- 
dition as  to  cany  off  the  water  running  on  and  over  the  same; 
yet  the  said  plaintiff  saith  that  said  defendant  so  negligently,  care- 
lessly, wrongfully,  and  improperly  conducted  itself  in  and  about 
improving,  maintaining,  and  keeping  in  repair  said  turnpike  road, 
running  as  aforesaid,  by  making  and  keeping  manifestly  insuffi- 
cient drains  and  catch-pits  for  carrying  off  the  water  accumulating 
and  running  in  and  along  the  said  road  into  the  adjoining  land, 
that,  by  means  of  such  negligent,  careless,  wrongful,  and  improper 
conduct,  large  quantities  of  water  ran  from  said  road  into  the  ad- 
joining collieries  of  the  plaintiff,  whereby  the  said  land  and  col- 
lieries had  been  and  were  injured  and  damaged;  and  the  said 
plaintiff  has  been  and  was  prevented  from  working  the  said  col- 


FORMS   OF   PETITIONS.  553 


lieries,  and  thereby  has  lost  largo  gains  and  profits,  which  he  other- 
wise would  have  made,  and  has  been  put  to  great  expense  in  and 
about  pumping  the  water  out  of  said  collieries  and  putting  the 
same  again  into  working  order;  and  thereby  large  quantities  of 
mining  tools,  apparatus,  and  stock,  used  with  and  in  the  working 
of  said  collieries,  have  been  and  were  injured  and  destroyed  and 
lost  to  the  said  plaintiff;  to  his  damage  8 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
8         ,  his  damages  so  as  aforesaid  sustained. 

DBH,  Attorney  for  Plaintiff. 

This  form  is  taken  from  the  case  of  Whitehouse  v.  Fellows,  10 
C.  B.,  N.  S.  7G5 ;  S.  C,  100  Eng.  C.  L.  765. 

213.    RESPONDEAT    SUPERIOR. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  on  the         day  of  ,  a.  d.  18     ,  was  pro- 

ceeding along  a  certain  highway,  in  ,  in  said  county  of  , 

with  a  certain  wagon  drawn  by  three  horses,  the  property  of  E  F, 
his  master,  and  on  the  proper  side  thereof,  as  he  had  a  right  to  do ; 
and  that  the  said  defendant  with  one  G  II.  his  groom,  was  coming 
on  horseback  in  a  direction  contrary  to  the  direction  in  which  the 
plaintiff  was  going;  and  that  the  plaintiff  was  on  foot  walking  at 
the  head  of  the  leading  horse  ;  and  that  the  said  (i  II.  in  order  to 
keep  up  with  the  said  B  F.  negligently,  carelessly,  and  wrongfully 
Btruck  his  spurs  into  the  horse  so  by  him  being  rode,  and  when 
said  horse  was  within  a  short  distance  of  plaintiff,  to  wit.  within 
feet  of  said  plaintiff,  the  said  horse  then  kicked  back  with 
his  hind  feet  and  hit  the  plaintiff  and  knocked  him  down,  and 
thereby  injuring  him  in  this,  to  wit :  (here set  wit  injuries  rec<  iced,) 
to  tin'  damage  of  the  plaintiff  I 

Wherefore  he  prays  judgment  against  said  defendant  i'<>\-  said 
sum  i  ,  his  damages  so  sustained. 

A  C,  Attorney  for  Plaintiff. 

This  form  is  made  up  from  the  ease  of  North  v.  Smith,  in  C.  B., 
N.  S.  :rrl.  ^.r..  LOO  Eng.  C.  L.  572.  The  court  held  thai  the  spur- 
ring tin-  horse  when  so  near  plaintiff  was  negligence,  and  that 
the  master  was  liable.  In  Gibbons  v.  Pepper,  1  Ld.  Raym.38; 
4  Mod.  !!» I :  L  Sal  k.  637,  the  court  said:  "If  1  ride  upon  a  horse,  and 
T  S  whips  his  horso,  so  thai  he  rune  away  with  me  and  runs  over 
any  other  person,  he  who  whipped   the  horse  is  guilty  of  th  ■  bat- 


554  FORMS    OF   PETITIONS. 


tery,  and  not  me,  But,  if  I  by  spurring  was  the  cause  of  such 
accident,  then  I  am  guilty." 

Williams.  J.:  "If  there  was  negligence  at  all,  it  was  upon  the 
principle  that  a  man  lias  been  held  liable  for  spurring  a  spirited 
hoist'  in  the  midst  of  a  crowd,  or  the  permitting  a  fettered  ass  to 
lie  in  a  dark  and  narrow  lane,  so  that  a  person  riding  by  fell  over 
it."     Davies  r.  Mann,  10  Mees.  &  Wels.  54G. 

214.    NEGLIGENCE    IN    LEAVING   HOLE    OPEN   ON   A   VESSEL. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  before  and  at  the  time  of  committing  the  grievances  herein- 
after mentioned,  the  defendant  was  possessed  of  a  certain  vessel 
(or,  steamboat,)  called  the         ,  lying  in  a  dock  belonging  to  , 

(or,  lying  at  the  landing  in  the  port  of  ,  in  the  county  of 

and  State  of  ,)  and  that  the  plaintiff  was  then  master  of  and  in 
charge  of  another  ship  (or,  steamboat,)  called  the  ,  lying  in  the 

same  dock,  (or,  at  the  same  landing,)  along  side  of  the  said  ,  and 
by  reason  of  the  lying  between  the  quay  of  the  dock  (or,  the 

landing.)  and  the  said  ,  so  that  without  passing  over  the  decks 
of  the  said  it  was  impossible  for  persons  on  board  of  the  said 

conveniently  to  reach  the  shore;  and  that  the  said  plaintiff 
being  the  person  in  charge  of  the  said  was,  by  the  usage  of 

the  said  docks,  (or,  by  the  custom  among  steamboats  so  lying,)  enti. 
tied  as  of  right  at  all  times,  at  his  own  will  and  pleasure,  to  pass 
over  and  across  the  decks  of  the  defendant's  ship,  (or,  steamboat,) 
the  ,  for  the  purpose  of  passing  to  and  from  the  shore,  as  the 

said  defendant  then  well  knew  ;  yet  the  said  defendant,  disregarding 
his  duty  in  that  behalf,  on  the  day  of  ,  a.  d.  18     ,  negli- 

gent^, carelessly,  and  improperly  removed  the  hatches  from  one 
of  the  hatchways  leading  into  the  hold  of  the  said  vessel,  (or,  steam- 
boat,) in  the  direct  course  in  which  persons  passing  from  the 
to  the  shore  were  in  the  habit  of  passing  and  must  necessarily 
pass,  and  allowed  said  hatches  to  remain  off  after  dark,  and  the 
hatchway  to  remain  and  be  unguarded  and  unfenced  ;  whereby, 
and  by  reason  thereof,  the  said  plaintiff  having  occasion  at  night 
and  after  dark  to  pass  from  his  ship,  the  said  ,  to  the  shore  over 
the  decks  of  the  ship  of  the  said  defendant,  the  said  ,  fell  down* 
the  said  hatchway  without  any  default  on  his  part,  and  was  pre- 
cipitated through  the  same  into  the  hold  of  the  said  ,  and  by 
means  of  the  premises  the  plaintiff  was  greatly  hurt,  bruised,  and 
injured  in  this,  to  wit,  (Jiere  set  out  the  injuries  sustained  and  any 


FORMS   OF    PETITIONS.  555 


expense  in  doctors,  nurses,  and  loss  of  time;)  to  the  damage  of  the 
plaintiff  8 

Wherefore  the  plaintiff  prays  judgment  against  said  defendant 
for  the  said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

A  B,  Attorney  for  Plaintiff. 

The  above  form  is  taken  from  the  report  of  the  case  of  Hibbs  v. 
Eoss,  L.  R.,  1  Q.  B.  534.  This  form  may  he  shaped  to  suit  any 
case,  where  one  in  passing  through  the  building  or  over  the  ground 
of  another,  gets  hurt  by  an  opening  or  other  obstruction  being 
carelessly  Left  there,  where  he  had  a  right  to  go  and  pass,  or  was 
accustomed  to  pass  with  knowledge  and  consent  of  the  party  guilty 
of  the  negligence.  In  this  ease,  it  was  held  by  Blackburn  and 
Lush,  JJ.,  Miller  dissenting,  that  the  register  of  the  vessel  was 
prima  facie  evidence  for  the  jury  from  which  they  might  draw  the 
inference  that  the  persons  in  charge  of  the  ship  were  employed  by 
the  defendant,  the  register  showing  the  name  of  defendant  as 
owner.  The  vessel  at  the  time  of  the  accident  was  in  charge  of  a 
ship-keeper.  Thecases  are  numerous  as  to  the  effect  of  the  register 
of  a  vessel  upon  the  liability  of  the  party,  whose  name  appears  in 
it.  In  Cox  v.  Reid,  By.  it  Mood.  119,  and  in  Fletcher  v.  Reid,  Uy. 
&  Mood.  202.  n.,  both  Best,  0.  J.,  and  Lord  Gifford  held  that  the 
register  was  prima  facie  evidence  of  liability  for  repairs  ordered  by 
the  captain  against  the  person  appearing  on  the  register  as  owner. 
Frost  v.  Oliver.  2  E.  &  B.  301 ;  Mitchison  v.  Oliver,  5  E.  &  B.  419; 
Hackwood  v.  Lyall,  17  C.  B.  125.  Blackburn,  J.,  in  the  case  of 
Hibbs  v.  Ross,  supra,  said  :  '•  In  all  cases  in  which  the  owners  of  a 
ship  are  sought  to  be  made  liable,  either  in  contract  for  necessaries 
supplied  on  the  order  of  the  captain,  or  in  cases  of  collision  for  the 
negligence  of  the  crew,  or,  as  in  the  present  case,  for  the  negligence 
of  the  shipdeeeper,  I  think  that  the  question  really  is,  whether  the 
persons  sought  to  be  charged  were  the  employers  of*  the  captain, 
who  made  the  contract,  or  the  masters  of  the  persons,  who  were 

guilty  of  the  negligence;  and  that  the  liability  does  not  depend  on  the 

title  to  the  ship,  [n  cases  of  contract,  a  further  question  sometimes 
to  whether  the  ship-owner  may  not  have  clothed  the 
master  with  apparent  authority,  so  as  to  be  precluded  from  dis- 
puting his  authority;  but  in  cases  of  tort,  the  qu<  stion  can  only  be 
whether  be  in  fact  employed  those  actually  guilty  of  the  negli- 
gence. Bui  whil-i  agreeing  thai  the  ownership  of  the  ship  does 
not    render  the  owners  liable,  either  in  contract  or  tort,  for  the  acts 

of  the    master  and   CT6W,  OT  Other  persons   in   charge  of  the  vessel, 


556  FORMS   OP   PETITIONS. 


unless  the  owners  are  the  employers  of  those  persons,  I  think  that 
the  ownership  is  a  very  important  piece  of  evidence,  tending  to 
show  that  the  persons  who  are  proved  to  he  the  owners  of  the  ship, 
are,  in  fact,  the  employers  of  those  who  have  the  custody  of  the 
ship.  Ships  are  most  commonly  in  the  employment  of  the  owners; 
and  consequently  proof  of  ownership  is  evidence  tending  to  prove 
that  the  persons  proved  to  be  owners  of  the  ship  are  the  employers 
of  those  who  have  the  actual  custod}7  of  the  ship ;  and  the  register 
being  evidence  in  whom  the  title  of  the  ship  is,  I  think  evidence, 
that  the  registered  owners  are  in  possession  and  employ  those  hav- 
ing the  actual  custody,  is  competent.  It  is  by  no  means  conclu- 
sive." 

The   opinion  of  Blackburn,  J.,   is   a  very  elaborate   one,  and 
thoroughly  discusses  the  whole  question  on  authority  and  principle. 

215.    FOR   SETTING    FIRE    TO    BUILDING. 

The  said  A  B,  plaintiff,   complains  of  the  said  ,  for  that 

the  said  defendant  is  a  corporation  duly  organized  under  the  laws 
of  the  State  of  ,  for  the  purpose  of  constructing  and  running. 

a  railroad  from  to  ,  in  the  said  State  of         ,  and  that  at 

and  before  the  committing  of  the  wrongs  and  grievances  herein- 
after mentioned,  the  said  defendant  owned  and  used  a  line  of  rail- 
road running  from  to  ,  in  the  State  of  ,  with  its 
locomotives  and  cars,  and  that  said  line  ran  through  (or,  into,) 
the  city  of  ,  in  said  State  of  ,  and  there  had  certain 
switches  and  side-tracks  in  the  streets  of  said  ,  on  and  along 
which  it  was  accustomed  to  run  its  locomotives  and  cars;  and  the 
plaintiff  further  saith  that,  on  the  day  of  ,  a.  d.  18  ,  he 
was  the  owner  and  occupier  of  a  certain  dwelling-house,  (or,  tav- 
ern, warehouse,  etc.,  as  the  case  may  be,)  situated  on  street, 
in  said  ,  with  a  large  quantity  of  furniture,  clothing,  and 
other  goods  used  with  said  house  and  by  the  family  of  said  plaint- 
iff residing  therein,  and  that  there  was  then  a  side-track  of  said 
railroad  laid  down  and  in  use  along  said  street,  and  in  front  of  the 
dwelling-house  of  said  plaintiff,  of  all  which  the  defendant  had 
notice ;  and  that  on  said  day  of  ,  A.  d.  18  ,  the  said 
defendant,  by  its  agents  and  servants,  so  negligently,  carelessly, 
and  improperly  ran  and  conducted  a  locomotive  of  said  defendant 
along  said  side-track  in  said  street,  and  in  and  near  the  front  of 
the  said  dwelling-house  of  said  plaintiff,  that  the  sparks,  cai'clessly 
and  negligently  allowed  to  issue  from  the  chimney  of  said  loco- 
motive, did,  by  the  carelessness,  negligence,  and  improper  man- 


FORMS   OF   PETITIONS.  557 


agemcnt  of  said  locomotive,  by  the  agents  and  servants  of  the  de- 
fendant, set  fire  to  and  burn  the  said  dwelling-house  of  plaintiff, 
together  with  the  said  furniture,  clothing,  and  goods  therein ;  being 
to  the  damage  of  the  plaintiff  S 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

N  L,  Attorney  for  Plaintiff. 

Carelessness  in  the  use  of  fire,  whereby  the  property  of  another 
is  burned  or  injured,  will  sustain  an  action  for  damages  by  the 
party  injured  against  the  party  guilty  of  the  negligence.  Thus, 
an  action  lies  for  carelessly  and  negligently  kindling  a  fire  on  the 
defendant's  own  land,  whereby  the  property  of  plaintiff  on  adja- 
cent land  was  burnt.  Barnard  v.  Poor,  21  Pick.  378 ;  Mead  v. 
Hammond,  1  Strange,  504.  So,  an  action  upon  the  case  lies  upon 
the  general  custom  of  the  realm  against  the  master  of  a  house,  if  a 
fire  be  kindled  there  and  consume  the  house  or  goods  of  another. 
2  H.  4.  18  ;  1  Pol.  1  E. ;  1  Com.  Dig.  419.  So,  if  a  fire  be  kindled 
in  a  yard  or  close  to  burn  stubble,  and  by  negligence  it  burns  corn, 
etc.,  in  an  adjoining  close.  K.  9,  W.  3,  B.  R.  between  Turberville, 
and  Stamp,  Skin.  G81 ;  1  Salk.  13;  Comyn,  32.  So,  an  action  on 
the  case  lies  for  carelessly  carrying  fire,  whereby  the  plaintiff's 
stock' -yard  was  destroyed;  but  not  for  an  accidental  burning. 
Maul  v.  Wilson,  2  Harring.  443.  In  the  case  of  Fero  v.  Buffalo 
and  State  Line  R.  E.  Co.,  22  X.  Y.  20!),  this  doctrine  was  applied 
to  the  burning  of  a  house  from  the  sparks  of  a  locomotive.  Bacon, 
J.,  says:  "Some  of  the  English  cases  have  gone  the  length  of  hold- 
ing that  the  very  fact  that  buildings  in  proximity  to  a  railroad 
have  been  fired  by  sparks  frotn  a  locomotive  is  sufficient  to  war- 
rant a  jury  in  inferring  and  presuming  negligence  without  further 
proof.  Bui  I  think  we  have  not  carried  the  rule  in  this  country  to 
that  extent,  and  certainly  not  in  this  State.  The  reason  given  is 
that  the  use  of  fire  to  create  the  motive  power  of  a  railroad  engine 
is  not  only  lawful,  but  necessary,  and  sparks  may  escape,  notwith- 
standing the  safeguards  which  science  and  skill  have  employed  to 
limit  theirrange.  Sheldon/-.  Eudson  River  R.  B.  Co.,  4  Kern.  218. 
There  musl  he  therefore,  some  proof  of  negligence  to  create  a 
liability  arising  from  the  exercise  of  a  conceded  right  in  an  im- 
proper or  unreasonable  manner." 

A  similar  case  is  reported  in  44  N.  Y.  3G7,  Bedell  v.  Long  [aland 
h\  l:.  <  !o.  Speaking  of  what  is  evidence  of  negligence,  Earl,  ( !om- 
missioner,  says:  "The  mere  fact  that  large  sparks  were  emitted 


558  FORMS   OP   PETITIONS. 


from  the  engine  in  such  profusion,  and  were  carried1  to  such  a  dis- 
tance as  to  set  fire  to  adjoining  fences  and  buildings,  is  sufficient 
to  show  that  there  was  carelessness,  as  common  observation  and 
experience  teach  that  engines  can  be  and  are  run  through  the 
country  without  such  dangerous  consequences.  There  was,  how- 
ever, evidence  that  a  spark  arrester  had  been  used  upon  the  smoke- 
pipe  <>(' this  engine  before  and  after  the  accident,  and  that  while 
thus  used  there  was  no  damage  from  the  sparks.  ...  It  is 
enough  that  the  evidence  tended  to  show  that  this  engine  could 
not  with  safety  be  run  near  dwellings  without  this  appendage,  and 
that  it  could  be  with  it;  and  hence  ordinary  prudence  required 
its  use." 

The  courts  have  also  decided  that,  if  the  sparks  from  a  locomo- 
tive set  A's  house  on  fire,  and  the  fire  from  that  sets  fire  to  and 
burns  B's  house,  the  railroad  is  responsible  to  B  for  his  loss.  The 
railroad  is  to  be  held  responsible  for  losses,  if  the  loss  is  the  natu- 
ral consequence  of  its  alleged  carelessness,  which  might  have  been 
foreseen  by  any  reasonable  person;  but  it  is  not  to  be  hold  respon- 
sible for  injuries  which  could  not  have  been  foreseen  or  expected 
as  the  result  of  its  negligence.  Kent  v.  Toledo,  Peoria  and  War- 
saw E.  E.  Co.,  decided  by  the  Supreme  Court  of  Illinois,  June  28, 
1872 ;  T.  P.  &  W.  E.  E.  Co.  v.  Pindar,  53  111.  451 ;  S.  C,  5  Am. 
57  ;  Kellogg  v.  E.  E.  Co.,  26  Wis.  225  ;  contra,  Eyan  v.  E.  E.  Co., 
35  N".  Y.  210;  Penn.  E,  E,  Co.  v.  Kerr,  62  Penn.  St.  353;  S.  C,  1 
Am.  431.  The  ground  of  these  last  cases  is  that  the  damages  are 
too  remote.  Yet,  the  case  of  Vaughn  v.  Menlove,  32  Eng.  C.  L. 
613,  was  that  of  a  spontaneous  combustion  of  a  hay-rick.  The 
rick  was  burned,  the  owner's  buildings  were  destroyed,  and  thence 
the  fire  spread  to  the  plaintiff's  cottage,  and  it  was  also  consumed. 
The  defendant  was  held  liable.  5  M.  &  S.  198;  Lynch  v.  JSTurdin, 
1  Ad.  &  Ellis,  N.  S.  29;  Illidge  v.  Goodin,  5  Car.  &  P.  190;  Thomas 
v.  Winchester,  2  Selden,  408;  5  Am.  309,  341,  412  ;  Piggot  v.  East- 
ern Counties  E.  E.  Co.,  54  Eng.  C.  L.  229;  Smith  v.  London  and 
Southwestern  E.  E.  Co.,  L.  E.,  6  C.  B.  98.  The  courts  of  New 
York  and  Pennsylvania  stand  alone  on  this  question.  It  would 
seem  that  if  two  buildings  stand  so  near  together  that,  if  one 
burns,  the  other  in  all  human  probability  will  also  burn,  the  com- 
pany should  be  liable ;  the  loss  of  the  second  is  the  natural  result 
of  the  burning  of  the  first,  and  so  comes  within  the  rule  of  dam- 
ages. 


FORMS   OP   PETITIONS.  559 


216.     FOR    SUFFERING    SNOW    ON    ROOF   WHEREBY   IT    FELL    OFF    AND 

INJURED    ONE. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  the  defendant, 
for  that  the  said  defendant  was  the  owner  of  a  building  situate  on 
and  adjoining  to  street,  in  the  city  of  ,  in  said  county 

of  ,  and  that  in  front  of  said  building  and  along  said  street 

there  was  a  sidewalk,  along  and  over  which  persons  were  accus- 
tomed to  go  and  come  at  all  times  and  at  all  hours  of  the  day,  of 
which  said  defendant  had  notice;  and  that  said  defendant,  not  re- 
garding his  duty  in  that  behalf,  did,  on  the  day  of  ,  a.  d. 
18  ,  and  before  that  time,  carelessly  and  negligently  suffer  and 
permit  large  masses  of  snow  and  ice  to  accumulate  and  remain  on 
the  roof  of  said  building,  so  that  the  same  was  dangerous  to  per- 
sons passing  on  said  sidewalk,  as  the  same  was  liable  to  slide  there- 
from in  and  upon  said  sidewalk,  to  the  injury  of  persons  passing 
along  in  front  of  said  building,  of  all  which  said  defendant  had 
notice;  and  said  plaintiff  farther  saith  that  on  the  day  of  , 
A.  d.  18  .  he.  said  plaintiff,  was  passing  along  the  sidewalk  in  front 
<>f  -aid  building,  as  he  lawfully  might,  and  that  said  snow  and  ice, 
through  the  carelessness  and  neglect  of  said  defendant,  slid  down 
from  the  roof  of  said  building,  in  and  upon  tk'e  said  plaintiff  so 
lawfully  being  on  said  sidewalk,  and  in  and  upon  said  sidewalk, 
whereby  and  by  reason  thereof  the  said  plaintiff  was  thrown  down 
upon  said  sidewalk,  and  greatly  injured  in  his  head  and  other 
parts  of  his  body,  {here  state  what  the  injuries  are,  and  what  expenses 
put  to;)  to  the  damage  of  said" plaintiff  8 

"Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  S  ,  his  damages  so  as  aforesaid  sustained. 

II  L,  Attorney  for  Plaintiff. 

This  form  is  prepared  from  the  ease  of  Shipley  v.  Fifty  Associa- 
tion, 101  Mass.  251  ;  S.  ('.,:;  Am.:;  Hi:  Dygert  v.  Schenck,  23  "Wend. 
447.  "  The  principle,"  say  the  court,  "  stated  by  Lord  Cranworth 
in  bvland  v.  Fletcher,  L.  R.,  :\  II.  L.  330,  'that  if  a  person  brings 
or  accumulates  on  his  land  anything  which,  if  it  shall  escape,  may 
cause  damage  to  his  neighbor,  he  does  so  at  his  peril,'  is  applicable 
to  this  case.  In  that  case,  the  defendant  had  accumulated  water  in 
a  reservoir,  to  work  his  mill;  it  escaped,  and  injured  his  neigh- 
bor's coal  mine,  because  the  defendant's  engineer  had  neglected  to 
block  up  certain  shaft-  thai  Led  from  the  reservoir  to,  the  mine; 
and  the  defendant  was  held  liable.     He  had  a  righl  to  accumulate 

the   water  on    his   premises   in    that   case,  as   the  defendant    had   u 


560  FORMS   OP   PETITIONS. 


right  in  (his  case  to  accumulate  the  snow,  but  lie  was  bound  to  use 
due  care  to  prevent  it  from  escaping  and  injuring  his  neighbor." 

In  tli is  case,  the  landlord  was  held  liable,  the  building  being  oc- 
cupied by  a  tenant.  The  general  principle  undoubtedly  is,  that  a 
landlord  is  not  liable  for  a  nuisance  which  is  caused  by  the  act  or 
neglect  of  his  tenant.  Kirby  v.  Boylston  Market  Association,  14 
Gray,  2  l!>.  If  the  whole  of  the  building  in  this  case  had  been 
rented,  the  question  might  arise  whether  the  nuisance  consisted  in 
the  roof,  which,  at  the  time  of  making  the  lease,  was  so  constructed 
as  to  collect  snow  and  ice  and  project  it  into  the  street,  or  in  the 
neglect  of  the  occupant  to  remove  it  at  a  proper  time  and  in  a 
proper  manner.  But  it  does  not  appear  that  the  place  where  the 
snow  and  ice  accumulated  was  under  the  control  of  the  tenant." 
Millford  v.  Holbrook,  9  Allen,  17. 

A  landlord  and  tenant  may  be  joined  in  an  action  for  a  nuisance, 
or  the  landlord  alone,  where  the  property  has  been  leased  for  a 
purpose  which  of  itself  is,  or  is  liable  to  become,  a  nuisance. 
Pickard  v.  Collins,  23  Barb.  S.  C.  444 ;  Owings  v.  Jones,  9  Md.  108; 
L.  T.,  1  Q.  B.  702 ;  Bex  v.  Pellcy,  1  A.  &  E.  822.  On  the  general 
doctrine  of  negligence  on  part  of  plaintiff,  see  Murphy  and  wife  v. 
Dean  et  ah,  101  Mass.  455 ;  Tuff  v.  Warman,  5  C.  B.,  N.  S.  573  ; 
London,  Brighton  and  South  Coast  Railway  Co.  v.  Walton,  14  Law 
Times,  N.  S.  253;  S.  C,  Harr.  &  Ruth.  424.;  Scott  v.  Dublin  and 
Wieklow  Railway  Co.,  11  Irish  C.  L.  377 ;  Greenland  v.  Chaplin,  5 
Exch.  248  ;  Dowell  v.  Genl.  Steam  JSTav.  Co.,  5  E.  &  Bl.  195  ;  Bridge 
v.  Grand  Junction  Railway  Co.,  3  M.  &  W.  244;  Johnson  v.  H. 
River  R.  R.  Co.,  20  N.  Y.  65  ;  24  Yt.  487 ;  19  Conn.  566  ;  6  Gray, 
64;  22  Yt.  213;  9  El.  &  Bl.  719;  Oliver  v.  Worcester,  102  Mass. 
489  ;  S.  C,  3  Am.  485. 

217.    IN   CARRYING   ANIMALS. 

The  said  A  B,  plaintiff,  complains  of  said  ,  a  railroad  cor- 

poration duly  organized  under  the  law  of  the  State  of  for 

that  the  said  defendant,  before  and  at  the  time  of  the  committing 
of  the  wrongs  and  grievances  hereinafter  mentioned  by  said  de- 
fendant, was  a  common  carrier  by  railroad  of  cattle,  sheep,  hogs, 
and  horses,  and  other  animals,  for  a  certain  price  or  reward  to  be 
paid  to  said  defendant  in  that  behalf,  and  being  such  common  car- 
rier of  cattle,  sheep,  hogs,  and  other  animals  for  hire  as  aforesaid, 
the  said  plaintiff  did,  on  the         day  of  ,  A.  D.  18     ,  at  , 

in  the  county  of  a.nd  State  of  ,  cause  to  be  delivered  to 

the  said  defendants,  and  the  said  defendants  did  then  and  there  re- 


FORMS   OF   PETITIONS.  5G1 


ceive  from  said  plaintiff  divers,  to  wit,  (here  state  the  number  and 
kind  of  the  animals  delivered,)  of  the  plaintiff  of  great  value,  to  wit, 
of  the  value  of  8  ,  to  be  carried  and  conveyed  by  the  said  de- 
fendants from  said  ,  to  the  depot  of  said  defendant  in  the  city 
of  ,  in  the  State  of,  (or,  at  the  depot  of  [another  road']  in 
the  city  of  ,  )  without  any  default  and  negligence  on  the  part 
of  said  defendant,  and  there,  to  wit,  at  the  depot  of  said  defendant 
in  said  city  of  ,  without  any  unreasonable  delay  on  part  of  said 
defendant,  to  be  by  said  defendant  delivered  to  said  plaintiff,  (to 
whoever  is  consignee;)*  }'et  the  said  plaintiff  saith  that  said  defend- 
ant, not  regarding  his  duty  in  that  behalf  did  not  use  due  and  proper 
care  in  and  about  the  carrying  and  conveying  of  the  said 
of  said  plaintiff  ,  but  so  carelessly,  negligently,  and  improperly 
conducted  itself  in  the  carriage  and  conveyance  of  said  of 
the  plaintiff,  that  the  cars  in  which  said  of  plaintiff  were 
placed,  were  thrown  off  the  track  of  the  railroad  of  said  defend- 
ants, and  cast  with  great  violence  against  the  ground,  whereby  (here 
give  number  killed)  of  said  of  plaintiff  were  killed  and  the 
resl  thereof  greatly  injured,  wounded,  and  their  limbs  broken, 
whereby  the  same  became  and  were  utterly  worthless  to  the  plaint- 
tiff;  to  liis  damage  8 

Wherefore  he  ]>rays  judgment  against  said  defendant  for  said  sum 
of  §         ,  his  damages  so  as  aforesaid  sustained. 

E  T,  Attorney  for  Plaintiff. 

218.    WHERE    CARS   ARE    INSUFFICIENT. 

(Proceed  in  the  other  to  ■'■'.  and.  then  proceed  as  follows:)  yet  the 
said  defendant,  not  regarding  his  duty  in  that  behalf,  did  not 
furnish  good  and  roadworthy  ears    in  which  said  of  said 

plaintiff  were  placed,  to  be  carried  and  conveyed  so  as  aforesaid 
mentioned,  but  did  place  said  of  the  said  plaintiff  in   cars 

that  were  defective,  out  of  repair,  and  not  good  and  roadworthy  in 
this, to  wit.  (here  state  the  specific  imverfection\)  whereby  and  by 
reason  thereof  the  wheels  of  said  cars  gave  way,  ami  said  cars  SO 
containing  said  of  plaintiff,  were  thrown  from  the  trade  and 

rails  of  said   railroad,  and  broken    and  smashed    up,  and  of 

said  killed,  ami   tin'  resl   so  injured,  wounded,  ami  bruised, 

that  the  same  became  and  were  worthless  to  the  said  plaintiff;  to 

his  dam.i 

vol.  i_3G 


562  FORMS   OF   PETITIONS. 


219.    WHERE   THERE    HAS   BEEN   INJURY    FROM    DELAY. 

(Proceed  as  in  the  first  to  the  *,  and  then  proceed  as  follows:)  yet 
the  s;ii<l  defendant,  not  regarding  his  duty  in  that  behalf,  did  so 
negligently,  carelessly,  and  improperly  conduct  itself  in  and  about 
the  carriage  and  conveyance  of  said  of  the  plaintiff,  that  said 

did  not  arrive  without  unreasonable  delay  at  (the  place  of 
delivery,)  but  the  plaintiff  avers  that  said  defendant  did,  through 
its  own  default  and  negligence,  fail  to  reach  said  in  due  time 

as   it   ought,   b}T  days;  whereby  said  were  greatly  de- 

preciated in  value  by  the  unreasonably  protracted  delay,  and  also 
■  suffered  greatly  for  the  want  of  food  and  water  by  reason  thereof, 
and  by  the  fall  of        cents  per  pound  in  the  price  of  ,  at  said 

place  of  delivery,  between   the  day  when  by  due  diligence  said 
ought  to  have  been  there  delivered,  and  the  time  when  the 
same  were  delivered  and  received  by  the  plaintiff,  to  wit,  on  the 
day  of  ,  a.  d.  18     ,  to  the  damage  of  the  plaintiff  $ 

Prayer  as  above. 

The  law  in  regard  to  the  carriage  of  live  animals,  is  different 
from  what  it  is  in  regard  to  dead  freight.  In  the  latter  case,  the 
carrier  is  an  insurer  against  all  injuries,  save  those  arising  by  the 
act  of  God  or  public  enemies  ;  but  in  the  former  case,  the  carrier 
is  only  liable  for  neglect.  He  is  bound  to  furnish  a  substantial  and 
roadworthy  locomotive  and  cars,  and  not  to  overload  the  motive 
power,  and  not  unreasonably  to  delay  in  delivering  the  animals  at 
the  point  of  destination,  and  to  run  its  trains  without  neglect. 
Cattle,  horses,  etc.,  are  liable  to  injure  each  other  in  various  ways, 
and  they  must  be  attended  to,  and  fed  and  watered  while  on  the 
way.  If  the  animals  are  injured  from  either  of  the  causes,  the 
carrier  is  not  liable ;  still,  courts  are  strict  in  requiring  proof  that 
there  has  been  no  neglect,  when  a  prima  facie  case  is  once  made 
out.  , 

This  question  is  ably  discussed  in  the  case  of  the  Mich.  South. 
&  N.  Ind.  E.  E.  Co.  v.  McDonough,  21  Mich.  165  ;  S.  C,  4  Am. 
466 ;  vide  also  Carr  v.  Lancashire  &  York  E.  W.  Co.,  7  Exch.  712 ; 
Clarke  v.  Eochester  &  S.  E.  E.  Co.,  14  N.  Y.  573;  McManus  v. 
Lancashire  E,  E.  Co.,  2  Hurl  &  Norm.  702 ;  Palmer  v.  Grand  Junc- 
tion E.  E.  Co.,  4  Mees.  &  Wels.  758;  Oxlade  v.  Northeast  E.  E. 
•Co.,  15  C.  B.,  N.  S.  680 ;  Pardington  v.  South  Wales  Co.,  38  Eng. 
L.  &  Eq.  432;  Naylor  v.  Mangles,  1  Esp.  109;  Spear  v.  Hurtley, 
3  Esp.  81 ;  3  Parsons  on  Contracts,  240 ;  Sisson  v.  C.  &  T.  E.  E., 


FORMS    OP   PETITIONS.  563 


14  Mich.  4S9 ;  Walker  v.  London  E.  E.  Co.,  Angell  on  Carriers, 
sec.  214;  Johnson  v.  Midland  B,  E.  Co.,  4  Exch.  367;  P.  &  Meek. 
Bank  v.  Champlain  Trans.  Co.,  23  Yt.  186  ;  2  Bedf.  on  Railways, 
116 ;  Brind  v.  Dale,  2  M.  &  W.  775. 

Tkc  form  here  given  is  somewhat  briefer  tkan  same  in  tke  re- 
ports. Tke  petition  there  sets  out  the  line  of  the  road  or  rather 
its  termini.  But  the  liability  arises  out  of  the  business  of  being 
a  common  carrier  ;  hence  it  is  enough  to  aver  the  defendant  to  be  a 
common  carrier  by  rail,  then  state  the  delivery  and  acceptance  of  the 
animals  to  be  carried,  and  the  point  from  and  to  which  they  are  to 
be  carried,  and  then  the  neglect  by  which  the  injury  is  done. 
There  is  a  form  in  -4  Mees.  &  Wels.  748,  which  sets  out  the  mode, 
and  line  of  its  road. 

220.    TURNING    HORSE    IN    STREET    OP    CITY   WHERE    ONE    IS   INJURED 

BY   HIM. 

The  said  A  B.  plaintiff,  complains  of  tke  said  C  D,  defendant, 
for  thai  the  said  defendant,  on  the  day  of  ,  a.  d.  18     , 

was  possessed  of  a  certain  horse  in  the  cit}'of  ,  in  the  county 

of  ,  the  said  defendant  then   residing  in  said  city;  and  so 

being  possessed  of  said  horse  in  said  city,  the  said  defendant  did 
then  and  there  negligently,  carelessly,  wrongfully,  and  improperly 
voluntarily  turn  said  horse  loose,  and  without  any  one  to  attend  on 
said  horse,  into  the  streets  of  said  cit}',  along  which  large  numbers 
of  persons  were  constantly  passing  and  repassing,  as  said  defendant 
then  knew:  and  that  the  said  horse  so  sent  out  into  the  streets 
of  said  city  ran  against  and  over  the  said  plaintiff,  without  any 
fault  on  his  part,  and  thereby  then  and  there  knocked  down  said 
plaintiff,  and  greal  ly  injured  said  plaintiff  in  this,  to  wit,  (here  state 
the  specific  injuries  sustained,  \  and  other  wrongs  and  injuries  to  the 
plaintiff  then  and  there  did  to  him  by  said  horse;  to  the  damage 
of  said  plaintiff  8 

Wherefore  lie  prays  judgment  against  said  defendant  for  said 
sum  of  S        ,  his  damages  so  sustained. 

W  II,  Attorney  for  Plaintiff. 

This  form  is  made  up  from  the  ease  of  Dickson  r.  McCoy,  39 
N.  Y.  loo.  The  court  held  ii  was  oegligence  in  the  owner  to  turn 
oul  a  borse  into  the  Btreel  of  a  city,  where  numerous  people  are 
passing  and  repassing,  and  he  therefore  tnusl  !><•  responsible  for 
any  injury  he  may  inflicl  on  any  persons.  It  was  nol  necessary 
to  aver  the  horse  was  vicious  in  this  caBe;  the  negligence  consisted 


564  FORMS   OP   PETITIONS. 


in  turning  him  out  into  the  street  of  the  city  of  Troy.  This  Is 
sound  sense  and  good  law;  no  man  can  bo  allowed  to  turn  any 
kind  of  a  horse  into  the  thronged  streets  of  a  city ;  there  is  danger 
to  life  in  the  very  act.  It  is  like  throwing  a  stone  in  the  street, 
where  people  are  constantly  passing  and  repassing;  if  he  hit  any 
one,  he  is  guilty  of  trespass. 

221.    AGAINST    RAILROAD    FOR   INJURY   IN   PASSING   ANOTHER   CAR. 

The  said  A  B,  plaintiff,  complains  of  the  said  ,  for  that  be- 

fore and  at  the  time  of  the  happening  of  the  grievances  hereinafter 
mentioned,  the  said  was  a  corporation  duky  organized  under 

the  laws  of  the  State  of  ,  for  the  purpose  of  constructing  and 

running  a  railroad  from  to  ,  and  was,  at  the  time  here- 

inafter mentioned,  running  a  railroad  over  said  line  before  named  ; 
and  that,  on  the         day  of  ,  A.  D.  18     ,  the  said  plaintiff  was 

a  passenger,  for  a  valuable  consideration,  on  the  cars  of  said  de- 
fendant from  the  of  to  the  of  ;  and  that 
when  within  a  short  distance  of  ,  as  the  train  was  going  cast, 
the  said  ear  in  which  the  said  plaintiff  was  riding,  by  the  careless- 
ness of  the  said  defendant  came  near  to,  and  partly  in  contact  with, 
another  car  of  the  defendant,  then  standing  on  the  railroad  track 
of  defendant  north  of  that  on  which  the  train  on  which  plaintiff 
was  going  was  moving,  and  near  to  it,  and  a  stick  or  board,  or 
other  hard  substance,  by  and  through  the  negligence  and  careless- 
ness of  the  defendant,  was  projecting  from,  and  in  some  manner 
connected  with,  the  said  car  so  standing  on  the  said  north  track  ; 
and  as  the  car  in  which  said  plaintiff  was  riding  was  passing  the 
car  so  standing  on  said  north  track,  the  said  board,  stick,  or  other 
hard  substance  came  violently  in  contact  with  the  arm  and  elbow 
of  said  plaintiff,  and  fractured  and  broke  the  same,  and  thereby 
greatly  injured  the  said  plaintiff,  and  compelled  her  to  employ 
physicians,  at  great  expense,  to  dress,  adjust,  and  set  said  arm,  so 
as  aforesaid  injured  and  broken  (in  amputating  it),  and  in  attend- 
ing to  and  caring  for  such  injury  until  the  same  was  healed  and 
restored  as  far  as  the  same  could  be,  and  in  paying  for  nurses  to 
attend  upon  said  plaintiff  for  a  long  space  of  time ;  to  the  damage 
of  plaintiff  $ 

"Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  $         ,  her  damages  so  sustained. 

W  X,  Attorney  for  Plaintiff. 

This  form  is  prepared  from  the  case  of  Holbrook  v.  TJ.  &  Sch. 


FORMS    OF   PETITIONS.  565 


E.  E.  Co..  12  N.  Y.  236.  The  court  say:  "  The  boarding-cars  were 
placed  on  the  adjoining  track  by  the  defendant,  and  were  occupied 
by  workmen  in  its  service  ;  the  plaintiff's  arm  was  broken  at  the 
moment  when  the  passenger-car,  in  which  she  sat,  was  opposite 
the  boarding-cars.  .  .  .  There  was  nothing  except  the  board- 
ing-cars to  which  the  thing  which  caused  the  injury  could  be  at- 
tached. It  was  the  duty  of  the  defendant  and  its  agents  to  keep 
the  narrow  space  between  the  boarding-cars  and  the  passenger- 
train  clear  and  free  from  obstruction  ;  this  was  not  done.  .  .  . 
The  burden  of  showing  that  the  injury  was  accidental,  and  with- 
out fault  of  the  defendant,  lies  under  the  circumstances  above 
stated  on  it." 

222.    NEGLIGENCE    IN   PUTTING  DISEASED   SHEEP  WHERE   OTHER  SHEEP 

WERE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  heretofore,  to  wit,  on  the         day  of  ,  A.  D.  18     ,  the 

Baid  plaintiff  was  the  owner  in  fee  of  the  following  lands  and  tene- 
ments situate  in  the  count}'  of  ,  then  lately  purchased  of  said 
defendant,  which  said  land  and  tenements  were  then  and  there 
suitable  and  proper  lands  for  farming  and  for  pasturing  and  rais- 
ing and  yarding  sheep,  and  were  free  from  any  contagion  or  infec- 
tion dangerous,  noxious,  or  fatal  to  sheep  or  other  Btock,  and  being  so 
the  owner  in  fee  of  said  premises,  the  said  plaintiff  heretofore,  to  wit, 
on  the  day  and  year  aforesaid,  at  the  township  of  ,  in  said 
county  of  ,  at  the  special  instance  and  request  of  said  defend- 
ant and  in  consideration  that  said  defendant  would  exercise 
proper  care  and  prudence  in  and  aboul  said  premises,  and  not 
commit  or  suffer  to  he  committed  any  damage  or  injury  to  said 
premises  or  to  the  cattle,  sheep,  or  horses  of  said  plaintiff,  and 
would  not  bring  or  introduce  upon  said  premises  any  distemper,  or 
contagious  or  infectious  disease  dangerous  to  sheep  or  cattle,  did 
allow,  permit,. and  suffer  said  defendant  to  occupy  and  remain  in 
asion  of  said  premises,  and  said  defendant  did  occupy  and  re- 
main possessed  of  said  premises  for  a  long  space  of  time,  to  wit, 
from  the  day  of  ,  a.  d.  IS  ,  to  the  day  of  ,  a.  d. 
i  .  whereby  said  defendant  oughl  to  have  occupied  said  pren 
in  a  careful  and  prudenl  manner,  and  not  committed  himself,  or 
suffer  to  he  committed,  any  damage  or  injury  to  the  same,  or  to  the 
cattle  or  sheep  of  said  plaintiff  on  said  premises,  or  introduced,  or 
permitted  to  lie  introduced,  or  brought  upon  said  premises  any 
Sheep  or  other  animals  sick  and  diseased  with   any  hurtful   coiila- 


566  FORMS   OP   PETITIONS. 


gious  disease  or  sickness,  which  might  or  could  be  communicated  to 
the  sheep  of  the  said  plaintiff;  yet  the  said  defendant,  not 
regarding  his  duty  aforesaid  in  the  premises,  afterward,  to  wit,  on 
the         day  of  ,  a.  d.  18     ,  and  on  divers  and  sundry  other 

clays  and  times  between  that  day  and  the        day  of  ,  a.  d. 

18  ,  negligently,  carelessly,  and  willfully  contriving  craftily  to 
injure  and  defraud  said  plaintiff  in  this  behalf,  did  turn  in,  and 
caused  to  be  turned  in  and  upon  said  premises,  and  into  the  barn- 
vard,  sheepfold,  and  inclosure  of  said  plaintiff,  wherein  the  sheep 
of  said  plaintiff  were  then  and  immediately  about  to  be  pastured 
and   yarded,   a  large  number,  to  wit,  hundred  sheep,  sick, 

diseased,  and  affected  with  a  noxious,  dangerous,  and  contagious 
disease,  commonly  known  as  the  ;'scab,"  the  said  defendant  then 
well  knowing  said  sheep  so  turned  in  and  upon  said  premises  to  be 
so  diseased  and  sick  as  aforesaid;  by  reason  whereof,  and  by  and 
through  the  carelessness,  negligence,  and  willfulness  of  said  de- 
fendant, the  said  contagious  disease  was  communicated  to  the 
sheep  of  said  plaintiff,  then  there  on  said  premises,  as  said  defend- 
ant well  knew  at  the  time  he  so  turned  said  diseased  sheep  thereon, 
so  that,  to  wit,  of  plaintiff's  sheep,  of  great  value,  to  wit,  of 

the  value  of  $  ,  became  and  were  sick  and  disordered  with  said 
contagious  disease,  and  great  numbers,  to  wit,  died  thereby, 

and  the  rest  of  said  sheep  of  said  plaintiff,  to  wit,  were  ren- 

dered worthless  to  said  plaintiff  in  consequence  of  said  disease  so 
communicated  to  them,  so  that  said  plaintiff  wholly  lost  the  use  and 
benefit  of  and  profit  of  said  sheep,  and  was  compelled  to,  and  did  pay 
out  divers  large  sums  of  money,  to  wit,  $  ,  for  medicine  and 
nursing  and  care  of  said  sheep ;  to  the  damage  of  the  plaintiff  $ 

Wherefore  said  plaintiff  prays  judgment  against  said  defendant 
for  the  sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

E  T,  Attorney  for  Plaintiff. 

The  above  is  copied  from  the  case  of  Eaton  v.  "Winnie,  20  Mich. 
156;  S.  C,  4  Am.  377.  The  court  held  the  plaintiff  entitled  to 
-recover  on  this  state  of  facts  upon  the  principle,  "that  if  a  party's 
own  wrongful  act  has  brought  another  into  peril,  he  is  not  at 
liberty  to  impute  the  consequences  of  his  acts  to  a  want  of 
negligence  in  the  injured  party,  when  his  own  conduct  and  untruth- 
ful assertions  have  deprived  the  other  of  that  quality  and  produced  a 
false  sense  of  security.  Upon  this  point,  we  content  ourselves  with 
referring  to  the  case  of  Penn.  E.  E.  Co.  v.  Ogier,  35  Penn.  St.  72 
Gordon  v.  Grand  St.  E.  E.  Co.,  -4  Barb.  550;  and  Ernst  v.  Hudson 


FORMS   OF    PETITIONS.  •  5G7 


River  E.  E.  Co.,  35  X.  Y.  28,  which  fully  support  and  illustrate  the 
position  here  taken." 

223.     IN   A    PATENT   AGENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that,  on  the         day  of  ,  A.  D.  18     ,  in  consideration  that  the 

said  plaintiff  would  employ  the  said  defendant,  as  and  being  a  pat- 
ent agent,  as  his  agent* to  procure,  in  the  name  of  E  F,  certain 
letters  patent  for  an  invention  of  (here  state  in  general  terms  the 
object  of  the  patent,  as,  a  new  automaton  vase,  or  depot  for  holding 
coals  or  other  substances,)  for  reward  to  the  defendant  to  be  paid, 
the  said  defendant  promised  the  said  plaintiff  that  he  would  use 
due  and  proper  care  and  skill  in  and  about  endeavoring  to  procure 
the  said  letters  patent;  and  that  the  said  plaintiff,  relying  on  the 
promise  of  the  said  defendant,  did  employ  the  defendant  as  afore- 
said, to  wit,  at  the  time  aforesaid  and  on  the  terms  aforesaid  ;  and 
the  said  plaintiff  avers  that  sufficient  time  has  elapsed  to  entitle 
the  said  plaintiff  to  have  the  defendant  do  what  he  has  as  aforesaid 
promised  to  do,  and  to  sue  him,  said  defendant,  for  the  breach  of 
e-aid  promise  hereinafter  mentioned  ;  yet  the  said  defendant  did  not 
use  due  and  proper  eare  and  skill  in  and  about  endeavoring  to 
procure  l he  said  letters  patent;  but  the  said  plaintiff  avers  that 
the  saiil  defendant  so  carelessly  and  negligently  conducted  himself 
in  and  about  the  said  business  of  endeavoring  to  procure  the  said 
Letters  patent  thai  he  failed  to  procure  the  same  through  and  by 
reason  of  his  said  carelessness  and  negbgence;  whereby  the  said 
plaintiff,  to  whom  the  said  B  F  had  agreed  to  assign  the  benefit  of 
the  invention  and  of  the  letters  patent,  when  obtained,  lost  all  the 
profits  and  benelil  which  would  have  accrued  to  him  from  the  said 
Letters  patent,  if  the  same  had  been  granted;  to  the  damage  of 
said  plaintiff  $ 

Wherefore  said  plaintiff  prays  judgmenl  against  said  defendant 
for  -aid  sum  of  8         ,  his  damages  so  sustained. 

II  A  T,  Attorney  for  Plaintiff. 

This  form  can  easily  be  converted  into  one  where  the  plaintiff  is 
the  patent*  e,  by  inserting  the  plaintiff's  name  in  place  of  E  F,and  in 
Leaving  out  the  averment,  near  the  close  us  to  the  assignment,  and 
make  ii  read,  "  whereby  the  sail  plaintiff  lost  all  profits,"  etc., 
leaving  out  wliat  comes  in  between  the  words  plaintiff  and  lost. 

This  form  is  taken  from  the  report  of  the  case  of  Lee  v.  Walker, 
L,  I.'    7  Common  Pleas,  121;  S.C.,1  Eng.  R.  371.     The  negligence, 


BOS  FORMS   OF   PETITIONS. 


there  was  a  delay  by  which  another  person  obtained  a  patent  for 
same  thing,  which  lie  could  not  have  done  if  the  plaintiff's  appli- 
cation had  been  filed  when  it  should  have  been.  Vide  also  L.  R, 
4  Ch.  577. 

221.    IN    KEEPING  A  SEWER,  SO    THAT   WATER   CAME   INTO    CELLAR    OF 

PLAINTIFF. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  was  possessed  of  a  certain  house  and  shop, 
with  a  certain  cellar  under  the  same,  and  thereto  belonging,  and 
in  which  house,  shop,  and  cellar  the  said  plaintiff  then  carried  on  his 
trade  and  business  of  a  grocer;  and  that  said  defendant  had,  for 
his  own  accommodation  and  convenience,  made  and  constructed, 
and,  at  the  time  of  the  happening  of  the  wrong  and  injuries  here- 
inafter mentioned,  kept,  and  continued  so  made  and  constructed,  a 
certain  sewer  or  watercourse,  in   and   under  a   certain   street  or 
highway  near  to  the  house,  shop,  and  cellar  of  the  plaintiff,  and 
which  sewer  or  watercourse  was  under  the  management  and  con- 
trol of  the  said  defendant,  and  into  which  said  sewer  or  watercourse 
he,  the  said  defendant,  from  time  to  time,  caused  and  permitted  large 
quantities  of  water  to  flow,  and  which  said  water  then  flowed  and 
passed  in  and  along  the  said  sewer  or  watercourse  and  near  to  the 
said  cellar  of  the  plaintiff,  of  which  the  said  defendant  before  and 
at  the  time  of  the  committing  of  the  grievances  hereinafter  men- 
tioned had   notice;  yet  the  said  defendant,  not  regarding  his  duty 
in  that  behalf,  so  negligently,  insufficiently,  arid  improperly  made 
and  constructed  said  sewer  or  watercourse,  and,  at  the  time  of  the 
commission  of  said  grievance,  kept  and  continued  the  same  so  neg- 
ligently, insufficiently,  and  improperly  made  and  constructed,  and 
in  such  an  insufficient  and  improper  state,  and  did  also,  at  the  said 
time,  so  negligently  and  improperly  manage  said  sewer  or  water- 
course, and  cause  and  permit  such  large  and  unreasonable  quanti- 
ties of  water  to  flow  into  the  same,  that,  on  the  day  of  , 
a.  d.  18     ,  divers  large  quantities  of  water  penetrated  and  burst 
through  and  flowTed  out  of  and  from  the  said  sewer  or  watercourse 
of  said  defendant  into  the  said  cellar  of  the  plaintiff,  and  then 
greatly  damaged  and  injured  the  same;  and  also  then  damaged 
and  destroyed  divers  large  quantities  of  groceries  and  other  goods 
of  the  plaintiff,  then  lawfully  being  in  said  cellar,  in  the  way  of 
the   plaintiff's   said  trade  and  business;    to  the   damage   of  the 
plaintiff  S 


FORMS   OP   PETITIONS.  5G9 

Wherefore  plaintiff  prays  judgment  against  said  defendant  for 
Baid  sum  of  §         ,  his  damages  so  as  aforesaid  sustained. 

HAT,  Attorney  for  Plaintiff. 

This  form  is  taken  from  the  ease  of  Alston  v.  Grant,  24  Eng.  L. 
&  Eq.  122.  In  this  case  the  defendant  had,  more  than  twenty 
years  before  the  action, constructed  a  sewer  or  watercourse  through 
property  of  his  own  and  then  occupied  by  himself.  In  1845,  the 
defendant  Let  a  house  and  shop  and  cellar  to  the  plaintiff,  which 
the  defendant  down  to  that  time  also  occupied  with  his  property. 
In  1851,  the  sewer  burst,  and  thereby  the  plaintiff's  cellar  and 
goods  were  damaged;  and  the  plaintiff  thereupon  brought  an  ac- 
tion against  defendant  as  aforesaid.  The  jury  found  that  the 
sewer  was  not  originally  properly  constructed  and  had  been  so 
continued.  Held,  that  upon  the  letting  of  the  premises  to  plaint- 
iff, a  duty  arose  on  the  part  of  the  defendant  to  take  care  that  that 
which  before  was  rightful,  did  not  become  wrongful  to  the  plaint- 
iff, because  that  would  be  in  derogation  of  the  defendant's  own  de- 
mise to  the  plaintiff,  and  that  upon  this  ground,  as  also  upon 
the  principle  sic  utere  tuo  vt  alienum  non  Icedas,  the  action  was 
maintainable.  Tenant  r.  Goldwin,  2  Ld.  Eaym.  1089;  Vaughan  v. 
Menlove,  '■>  Bing.  X.  C.  468;  Cooper  v.  Barber,  3  Taunt.  99  ;  Gale 
on  Easm.  49;  Robins  v.  Barnes,  Hob.  131 ;  Rich  v.  Basterfield,  4 
Con,.  B.  783;  Arden  y.Pullen,  10  M.  A:  W.321. 

The  question  of  negligence  is  in  one  form  or  another  constantly 
presenting  itself.  Within  a  lew  years  these  questions  have  been 
repeatedly  before  the  courts  and  have  received  a  most  profound 
consideration.  The  liability  of  corporations,  as  well  as  of  individ- 
uals, lor  the  negligence  of  their  servants,  employes,  and  agents,  has 
been  discussed  and  most  elaborately  considered ;  an  effort  has  been 
made  to  eliminate  and  stale  the  principles  on  which  cases  are  to  he 
decided.  Among  these  are  the  cases  of  The  .Mersey  Docks  and  Ilar- 
bor  Hoard  Trustees  c.  Gibbs  and  others,  and  The  Same  v.  Penhallow 
and  oihers,T.  E.,1  House  of  Lords,  93;  :;  K.&  X.  164;  7H.&  N.329. 
The  ease  in  its  various  stages  received  a  most  thorough  discussion, 

and  il  was  held  that  corporations  were  liable  to  the  same  extent  as 
individuals,  even  though  there  were  no  stockholders,  1ml  il  was 
Composed    Of  trustees    having    no    personal    interest    in    it.      I    will 

refer  to  some  of  the  various  cases  on  the  subject.  Parnaby  v.  The 
Lancaster  Canal  Co.,  11  Ad.  &  El.  223;  Duncan  v.  Findlater,  2  CI. 
cv  Fin.  894;  11  ILL.  c.  ||:;:  n  Bxch.  257;  5  H.  &  N".  719;  1  II. . 
439j  1   11.  &  N.  59;  2  lb.  204;  :;  Ik  308;  2  CI.  &  Fin.  331  ;  5  B. 


570  FORMS    OF   PETITIONS. 


&  S.  1  in  ;  I  New  R.  354 ;  1  II.  &  N.  439  ;  4 B.  &  Ad.  30  ;  4  Term,  794 
10  C.  B.,  N.  S.  779;  2  B.  &  S.  402;  G  Taunt,  29;  5  B.  &  A.  837 
G  01.  &  Fin.  894 ;  10  C.  B.,  N.  S.  480 ;  G  M.  &  W.  509-;  2  Bing.  156 
8  El.  &  Bl.  801 ;  7  lb.  42G ;  12  C.  B.,  N.  S.  790 ;  3  II.  &  N.  308 ;  10 
C  B.,  K  S.  7G5 ;  13  lb.  7G8 ;  1G  lb.  54G  ;  1  Ld.  Kaym.  646  ;  Cdwp. 
754;  L.  B.,  7  Exch.  130;  S.  C,  1  Eng.  381  ;  G  Exch.  752;  5  E.  & 

B.  85G;  6  II.  &  N.  349;  7  lb.  937;  1  B.  &  S.  437;  L.  R,  2  Q.  B. 
2G4 ;  34  N.  Y.  79;  40  N.  Y.  9,  34 ;  40  lb.  145 ;  40  lb.  138 ;  39  lb.  61  ; 
39  lb.  358,  400;  3S  lb.  131,  260,  433,  440,  443,  455  ;  3  Keys,  263; 
12  N.  Y.  236,  425 ;  18  lb.  79,  248 ;  94  Eng.  C.  L.  881 ;  1  C.  B.  53 ; 
2  C.  B.  371 ;  1  C.  B.  274,  291 ;  1  Q.  B.  277,  711 ;  24  Eng.  L.  &  Eq. 
122 ;  2  C.  B,  631 ;  3  C.  B.  216,  326,  368,  422 ;  18  Ohio  St.  256,  399, 
492;  3  Eng.  &  Irish  Ap.  320;  37  N.  Y.  210,  287;  36  lb.  39,  135, 
153,  312,  378;  3  Q.  B.  555,  733;  100  Eng.  C.  L.  572,  765;  96  Eng. 

C.  L.  719,  1G8;  94  lb.  573;  44  K  Y.  367,  459;  41  N.  Y.  42 ;  6  K 
Y.  397  ;  34  lb.  527  ;  3  Ohio  St.  172  ;  G  lb., 105  ;  3  M.  &  W.  244 ;  10 
lb.  545 ;  8  Ohio  St.  1,10;  4  lb.  57G  ;  10  lb.  09 ;  9  lb.  484 ;  10  lb. 
118,  591;  5  Denio,  255;  22  Yt.  213;  19  Conn.  5GG  ;  12  Pick.  177; 
89  Eng.  C.  L.  740 ;  35  N.  Y.  516,  485 ;  34  K  Y.  670 ;  18  lb.  422; 
29  N.  Y.  591 ;  30  lb.  208,  370 ;  31  lb.  314;  20  lb.  65 ;  21  Ohio  St. 
212,  586;  20  lb.  137,  150,  251,  337,  442;  19  lb.  1,  221,  260;  18  lb. 
255,  343,  399,  492  ;  17  lb.  197 ;  11  lb.  333,  417. 

The  above  authorities  on  negligence  in  its  various  forms  in  ay  aid 
counsel  in  examining  questions  of  this  character.  I  find  them 
noted  by  me  in  the  margin  of  my  copy  of  the  Digest  as  I  found 
them  in  reading. 

225.    FOR   ISSUING   EXECUTION    AND    MAKING    LEVY   WHEN     NOTHINO 

WAS   DUE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant  before  the  committing  of  the  grievances 
hereinafter  mentioned,  to  wit,  on  the         day  of  -  ,  A.  D.  18     , 

had  obtained  a  judgment  against  the  said  plaintiff  for  the  sum  of 
$  debt,  and  8  costs,  and  the  said  plaintiff  avers  that  after- 
ward, and  before  the  issuing  of  the  execution  as  hereinafter  stated, 
he  paid  to  the  said  defendant  the  whole  amount  of  said  judgment 
and  the  costs  thereon  ;  yet  the  said  defendant,  then  well  knowing 
that  said  judgment  and  costs  had  been  so  paid,  on  the  day  of 
,  A.  d.  18  ,  wrongfully  and  illegally  caused  and  procured 
an  execution  to  be  issued  on  said  judgment,  for  the  collection  of 
the  entire  amount  thereof  and  costs  thereon,  and  then  deliv- 
ered the  same  to  the  sheriff  of  the  said  county  of  ,  and 


FORMS   OF   PETITIONS.  571 


procured  him  to  levy  the  same  on  the  goods  and  chattels  of  the  said 
plaintiff,  of  the  value  of  8  ,  and  afterward  procured  the  said  sher- 
iff, on  the  day  of  ,  a.  d.  18  ,  to  sell  said  goods  and  chat- 
tels at  public  auction,  and  the  said  sheriff  did  then  so  sell  said  goods 
and  chattels  at  a  price  much  below  the  value  thereof;  whereby  the 
said  defendant  was  greatly  damaged;  to  the  damage  of  the  said 
plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  said  sum  of  8        ,  his  damages  so  as  aforesaid  sustained. 

226.    AGAINST   AN   OFFICER  FOR  LEAVING  PROPERTY    LEVIED  ON  WITH 
THE   PARTY,    WHEREBY    IT    WAS    LOST. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff  had,  on  the         day  of  ,  A.  D.  18     , 

obtained  a  judgment  against  one  E  F,  in  the  Court  of  Common 
Pleas,  within  and  for  the  county  of  ,  (or,  before  one  , 

he,  the  said  ,  then  being  a  justice  of  the  peace  for  the  town- 

ship of  ,  in  the  county  of  ,)  for  the  sum  of  3  debt, 

and  $         ,  his  costs  of  suit ;  that  the  said  plaintiff  did.  on  the 
day  of  ,  a.  d.  18     ,  cause  an  execution,  to  be  issued  from  the 

said  court,  (or,  by  said  justice  of  the  peace.)  directed  to  the  said 
defendant,  he,  the  said  defendant,  then  being  sheriff  of  the  said 
county  of  ,  (or, he,  the  said  defendant,  thin  bring  constable 

of  said  township    of  ,)  commanding  him.  as  such  officer,  to 

levy  the  said  sum  of  8  ,  debt,  and   s  ,  costs,  of  the  goods 

and  chattels  of  the  said  ,  and  the  said  plaintiff  then  caused 

Raid  execution  to  be  delivered  to  the  said  defendant,  and  the  said 
defendant  then  received  the  same  and  afterward,  and  during  the 
life  of  the  same,  levied  the  same  upon  the  following  goods  and 
chattels  of  the  said  ,  (Jiere  describe  them;)  and  the  said  de- 

fendant then  left  the  said  goods  and  chattels  in  the  custody  of  the 
said   B  F.  so  that  the  said  gO.ods  and  chattels  afterward,  on  the 
day  of  ,  a.  d.  18     ,  were  not  produced  ami  sold  by  the  said 

defendant,  according  to  an  advert  iseineiil  before  that  time  duly 
given  01  the  time  and  place  for  the  Belling  of  said  goods  and  chat- 
tel- :  whereby  the  said  goods  and  chattels  became  and  were  wholly 
lost,  and  (the  said  plaintiff  wholly  unable  to  make  his  said  judg- 
ment and  costs  against  the  said  B  V.  he.  the  said  E  V.  having  no 
other  goods  or  chattels,  lands  or  tenements,  whereon  the  said 
plaintiff  could  further  levy  to  satisfy  his  said  judgment  and  costs  j 
to  the  damage  oi  the  said  plaint  ill'  8  ,  (/Ac  amount  of  the  judg- 
I  and  costs.") 


572  FORMS   OF   PETITIONS. 


Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  sO  as  aforesaid  sus- 
tained. 

This  is  drawn  from  the  case  of  Ohio  for  Smith  v.  Fuller  et  al.,  14 
Ohio,  545.  It  would  seem  that  no  averment  need  be  made  that  the 
execution  debtor  had  no  further  property,  as  the  officer  is  liable 
for  the  property  levied  on.  The  damages  will  be  the  value  of  the 
property  levied  on.  Ohio  for  Morgan  v.  Myers  ct  al.,  14  Ohio,  538. 
For  not  returning  an  execution,  the  plaintiff  is  entitled  to  the  face 
of  the  execution  prima  facie.     Ledyard  v.  Jones,  3  Selden,  550. 

227.    AGAINST    A    SHERIFF    FOR   ESCAPE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  one  E  F  was,  on  the         day  of  ,  A.  d.  18     ,  indebted  to 

the  said  plaintiff  in  the  sum  of  $  ;  and  the  said  plaintiff,  on 

the  said         day  of  ,  a.  d.  18     ,  commenced  an  action  against 

the  said  E  F,  for  the  recovery  of  the  said  sum  of  $  .  ,  in  the 
Court  of  Common  Pleas,  within  and  for  the  county  of  ,  and 

the  said  plaintiff  did  then  and  there  file  his  affidavit,  and  procure 
an  order  of  arrest  to  be  issued  out  of  said  court  in  the  said  action, 
addressed  to  the  sheriff  of  the  said  county  of  ,  and  caused 

the  same,  together  with  a  copy  of  the  said  affidavit,  to  be  delivered, 
on  said  day,  to  said  defendant,  he,  the  said  defendant,  then  being 
sheriff  of  said  county  of  ,  requiring  said  sheriff  to  arrest  said 

E  F,  and  to  hold  him  to  bail  in  double  of  said  sum,  and  to  return 
the  same  on  the         day  of  ,  A.  d.  18     ,  with  the  undertaking' 

of  the  bail,  if  any  should  be  given  ;  and  the  said  plaintiff  further 
saith  that  the  said  defendant  did  afterward,  and  before  the  said 
day  of  ,  a.  d.  18     ,  (the  return  day  of  the  order  of  arrest,} 

under  and  by  virtue  of  the  said  order  of  arrest,  arrest  the  said 
E  F,  in  his  body,  and  then  had  him  in  his  custody,  as  such  sheriff, 
at  the  suit  of  the  said  plaintiff  in  the  action  aforesaid;  yet  the 
said  defendant  did,  on  the         day  of  ,  A.  D.  18     ,  without  the 

consent  or  license  of  the  said  plaintiff,  voluntarily  suffer  and  per- 
mit the  said  E  F  to  escape  and  go  at  large,  wheresoever  he  would, 
out  of  the  custody  of  the  said  defendant,  the  said  claim  of  the  said 
plaintiff  against  the  said  E  F  then  and  still  being  wholly  unpaid 
to  the  said  plaintiff;  whereby  the  said  plaintiff  hath  been  greatly 
damaged,  and  has  lost  his  said  claim  against  the  said  E  F,  he,  the 
said  E  F,  having  absconded  and  gone  beyond  the  jurisdiction  of 


FORMS    OF   PETITIONS.  573 


this  court,  with  all  his  moneys,  goods,  and  effects;  to  the  damage 
of  the  said  plaintiff  8  ,  (the  amount  of  the  claim  and  costs  paid.) 
Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid  sus- 
tained. 

This  form  will  serve  as  a  guide  in  all  cases.  If  the  neglect  con- 
in  not  arresting  the  party,  the  averment  will  be  that  he  "  did 
not,  nor  would,  at  any  time  before  the  return  of  said  order  of  arrest, 
take,  or  cause  to  be  taken,  the  said  E  F,  but  therein  wholly  failed 
and  made  default  -f  whereby,  etc." 

If  the  neglect  was  on  final  process,  the  petition  will  state  the 
recovery  of  the  judgment,  the  application  for  the  capias,  its  issue, 
and  then  the  neglect,  as  in  the  last  form,  when  for  an  escape  ;  or  as 
modified,  when  for  a  neglect  to  arrest. 

Under  the  averment  that  he  voluntarily  suffered  the  party  to 
escape,  a  negligent  escape  may  be  proved.  2  Term,l2G  ;  5  Burr, 
2814;  1  Saund.  35,  note  1.  Evidence  of  a  negligent  escape  will 
support  an  action  for  a  voluntary  one.  Skinner  v.  White,  9  N.  II. 
204.  So  an  escape  from  the  deputy  may  be  declared  on  as  an 
escape  from  sheriff.     S.  C,  9  K  H.  201. 

What  will  excuse?  Nothing  but  the  act  of  God  or  public  ene- 
mies.  Fairchild  v.  Coxe,  24  Wend.  3S1 ;  Rainey  v.  Dunning,  2 
Murph.  386. 

Formerly,  in  England,  an  action  of  debt  was  given  by  statute  to 
persons  injured  by  the  escape  of  debtors  in  execution;  and  this  is, 
perhaps,  still  the  case  in  some  of  the  Slates  of  the  Union.  Under 
the  inflexible  provisions  of  these  statutes,  it  seems  that  the  amount 
of  the  debt  was  the  sole  measure  of  the  amount  recoverable  in  an 
action  of  debt  for  an  escape.  13ut  in  this  State  we  have  never  had 
any  such  statute,  and  the  matter  remains  as  at  common  law.  The 
only  reported  cast'  in  this  State  bearing  on  the  point,  which  I  have 
been  able  to  find,  is  that  of  Richardson  v.  Spencer,  6  Ohio,  13; 
where  it  was  held  that  in  an  action  on  the  case  for  an  escape  on 
final  process,  it  i>  competent  for  the  defendant  to  prove  in  mitiga- 
tion of  damages  that  the  defendant  had  no  property.  In  that  case, 
the  escape  was  involuntary,  or  at  most  negligent,  on  the  part  of 
the  sheriff;  and  the  court  intimate  that  the  rule  of  damages  might 
be  different,  where  the  escape  was  voluntary;  but  thai  question 
was  doI  before  the  court,  and  was  uot,  therefore,  and  could  not  be, 
authoritatively  passed  upon.  And  the  adjudged  cases  do  not  estab- 
lish such  a  distinction.     And  although  the  rules  of  damages,  in 


574  FORMS   OP   PETITIONS. 


actions  on  the  case  for  escape,  especially  as  relating  to  the  burden 
of  proof,  still  appear  to  be  somewhat  afloat  in  England,  yet  in  this 
country  the  following  rules  seem  now  to  be  settled  by  the  prepon- 
derating weight  of  authority: 

1.  On  proving  the  judgment,  arrest,  and  escape,  the  plaintiff  is, 
prima  facie,  entitled  to  recover  the  whole  amount  of  his  debt. 

2.  To  reduce  the  recovery  below  the  amount  of  the  debt  due 
from  the  escaping  prisoner,  the  onus  probandi  rests  upon  the  de- 
fendant. 

3.  For  this  purpose  the  defendant  may  not  show  that  the  amount 
of  the  debt  is  still  capable  of  being  collected  from  the  escaped  pris- 
oner; but  may  show  his  partial  or  total  insolvency,  or  pecuniary 
worthlessness  at  the  time  of  the  escape. 

4.  That  on  proving  judgment,  arrest,  and  escape,  the  plaintiff,  in 
all  eases,  is  entitled  to  recover  at  least  nominal  damages. 

5.  Where  the  jury  find  the  escape  to  have  been  not  only  volun- 
tary, on  the  part  of  the  officer,  but  that,  in  permitting  the  same,  he 
was  actuated  by  fraud,  malice,  or  corruption,  they  are  not  restricted 
to  the  amount  of  pecuniary  injury  actually  sustained,  and  may  in- 
clude reasonable  exemplary  damages,  but  with  this  exception, 
where  evidence  in  mitigation  is  given,  the  actual  injury  sustained 
is  the  proper  measure  of  recovery.     lb. 

228.   AGAINST   A   SHERIFF   FOR   FALSE    RETURN. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  at  the  term  of  the  Court  of  Com- 

mon Pleas,  within  and  for  the  county  of  ,   by  the  considera- 

tion of  said  court  recovered  a  judgment  against  one  E  F  for  the 
sum  of  $  ,  his  claim,  and  $  ,  his  costs  in  said  action 

expended,  as  by  the  said  record  thereof,  in  said  court  now  re- 
maining, appears,  and  which  said  judgment  now  remains  in  full 
force,  unreversed  and  unpaid  ;  and  the  said  plaintiff  further  com- 
plains that  he  did  afterward,  on  the  day  of  ,  A.  d. 
18  ,  cause  a  certain  execution  to  be  issued  on  said  judgment, 
directed  to  the  sheriff  of  said  county,  commanding  him  that,  of  the 
goods  and  chattels  of  the  said  E  F,  he  cause  to  be  made  the  said 
sum  of  $  ,  the  debt,  and  $  ,  costs,  and  $  ,  increased  costs, 
and  for  want,  of  goods  and  chattels,  he  cause  the  same  to  be  made 
of  the  lands  and  tenements  of  the  said  E  F,  and  the  said  plaintiff 
caused  to  be  indorsed  on  said  execution  the  said  sum  of  $  ,  debt 
aforesaid,  and  8  ,  the  costs  aforesaid,  for  which  said  judgment 
was  entered  ;  and  the  said  plaintiff  did,  on  the          day  of  , 


FORMS   OF   PETITION'S.  575 


A.  D.  18  ,  cause  said  execution,  so  indorsed,  to  be  delivered  to  the 
said  defendant,  he,  the  said  defendant,  then,  and  until  after  the 
return  of  said  execution,  being  sheriff  of  said  county  of  .  and 

as  such  authorized  and  required  to  execute  said  writ  of  execution 
and  the  said  defendant  afterward,  and  before  the  time  for  the  re- 
turn of  said  writ  of  execution,  seized  and  took,  by  virtue  thereof 
divers  goods  and  chattels  of  the  said  E  F,  in  his  said  county  found 
of  the  value  of  3  ,  and  then  levied  thereon  ;  yet  the  said  defend- 
ant, not  regarding  his  duty  in  that  behalf,  afterward  and  before 
the  return  day  of  said  writ  of  execution,  falsely  entered  on  saic 
writ  of  execution,  as  his  return  thereto,  that  the  said  E  F  had  in 
his  county  no  goods  or  chattels,  lands  or  tenements,  found,  whereon 
he  could  levy  the  said  writ  of  execution,  and  make  Baid  sum  of 
money  thereby  required  to  be  made,  as  will,  by  his  return,  now  on 
file  in  the  office  of  the  clerk  of  the  said  court  remaining,  appear  ; 
whereas  the  said  plaintiff  saith  that  the  said  E  F  had  goods  and 
chattels,  lands  and  tenements,  in  said  county,  sufficient  to  satisfy 
the  sums  named  in  said  writ  of  execution  and  that  the  said  defend- 
ant did  levy  the  same  on  divers  goods  and  chattels  of  the  said  E  F, 
sufficient  to  satisfy  said  spurns,  and  thereafter  released  the  same; 
whereby  the  said  plaintiff  has  lost  his  said  claim,  and  has  sustained 
damages  to  the  amount  of  3 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

If  no  levy  was  made,  omit  that  averment,  and  aver  that  he  "  did 
not,  nor  would  at  any  time  before  the  return  thereof,  make  the 
money  aforesaid,  or  any  part  thereof,  but  wholly  neglected  and 
failed  so  to  do,  and  at  the  return  of  said  writ  of  execution,  falsely 
returned  to  said  court  that  the  said  10  F,"  etc. 

The  rule  of  damages  is.  'prima  facie ',  the  amount  of  the  execution, 
it  is  nut  necessary  for  the  plaintiff  to  allege  or  prove  special  dam- 
ages. Ledyard  v.  Jones,  3  Selden,  550;  Rome  v.  Curtiss,  1  Hill, 
275;  6  lb.  550;  0  Johns.  300;  10  Mass.  474. 

229.     AGAINST    A    WITNESS,    FOB    REFUSING    To    ANSWER,    OR    ATTEND 
i  NDEB    A    SI  BPENA. 

The   said    A    B,  plaint  ill',   complains  of  the   said   C  D,  defendant , 

for  thai  the  said  plaintiff,  before  tho  committing  of  the  wrong  by 
the  said  defendanl  hereinafter  named,  ha'd  caused  the  said  defend- 
ant to  be  duly  served  with  a  subpena,  commanding  him  to  be  and 


576  FORMS   OP   PETITIONS. 


appear  before  the  Court  of  Common  Pleas,  within  and  for  the  said 
county  of  ,  on  the         day  of  the  term  thereof,  A.  D. 

18  ,  there  to  give  testimony  in  behalf  of  the  said  plaintiff  in  a 
certain  case  then  and  there  pending,  and  to  be  tried,  wherein  the 
said  plaintiff  was  plaintiff,  and  one  E  F  was  defendant;  and  the 
said  plaintiff  further  saith  that  the  said  defendant,  not  regarding 
his  duty  in  the  premises,  failed  and  willfully  refused  to  appear,  as 
he  was  by  said  writ  of  subpena  commanded;  but,  on  the  contrary, 
willfully  stayed  away  from  said  court;  whereby  the  said  plaintiff, 
when  said  action  was  called  for  trial,  was  compelled,  for  want  of 
the  testimony  of  said  defendant,  without  whose  testimony  he  could 
not  safely  proceed  to  the  trial  of  said  action,  to  move  the  said  court 
there  to  continue  the  said  action,  and  the  said  court  did  continue 
the  same  at  the  costs  of  the  said  plaintiff,  and  the  said  plaintiff 
saith  that  he  was  compelled  to  pay  on  said  continuance,  as  costs 
thereof,  the  sum  of  $  ,  which  sum  he  was  so  compelled  to  pay  by 
reason  of  the  refusal  of  the  said  defendant  to  attend  at  the  time 
aforesaid,  and  testify  on  said  trial;  to  the  damage  of  the  said 
plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

Thi'  action  lies  at  common  law.  Douglass,  561  ;  Peakc,  60  ;  13 
East,  15.  In  Warner  v.  Lucas,  10  Ohio,  336,  it  was  held  that  an 
action  might  be  sustained  against  a  witness  for  willfully  refusing 
to  testify. 

230.   AGAINST    THE    JUDGES   OF   AN    ELECTION,  FOR   REFUSING   PLAINT- 
IFF'S   VOTE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  and  G  H, 
defendants,  for  that  the  said  defendants  were  the  judges  of  a  certain 
election,  held  in  and  for  the  township  of  ,  in  the  county  of 

,  for  the  purpose  of  electing  one  justice  of  the  peace  within 
and  for  said  township  of  ,  and  that  the  said  defendants,  as 

such  judges,  did  open  the  polls  for  said  election  at  the  town-house 
in  said  town  of  ,  at  o'clock,  on  said        day  of  ,  as 

aforesaid  ;  that  the  said  plaintiff  was  a  citizen  of  said  State  of  Ohio, 
and  a  resident  and  legal  voter  at  the  said  election,  in  said  township 
of  ,  and,  as  such  elector,  the  said  plaintiff  did,  on  the  said 

day  of  ,  a.  d.  18     ,  and  whilst  the  said  polls  were  still  kept 

open  by  the  said  defendants,  for  the  receiving  of  the  votes  of  the 


FORMS   OP   PETITIONS.  577 


electors  of  said  township  at  said  election,  offer  his  vote  or  ballot 
for  the  election  of  a  justice  of  the  peace  as  aforesaid,  and  requested 
the  said  defendants  to  receive  the  same  ;  yet  the  said  defendants, 
not  regarding  their  duty  in  that  behalf,  then  and  there  refused  to 
receive  the  vote  or  ballot  of  the  said  plaintiff,  whereby  the  said 
plaintiff  was  deprived  of  his  right  to  vote  at  said  election ;  to  the 
damage  of  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

The  averment  of  malice  is  unnecessary.  Jeffries  v.  Anthony  et 
al.,  11  Ohio.  372;  Thatcher  v.  Hawk  et  al.,  11  lb.  376;  Lincoln  v. 
Hapgood,  11  Mass.  350  ;  Cossen  v.  Foster  et  al,  12  Pick.  485  ;  Os- 
good v.  Bradley,  7  Greenl.  421.  So,  too,  an  action  lies  against 
school  directors  for  refusing  to  permit  a  person's  children  to  attend 
the  public  schools.     Lane  v.  Baker  et  al.,  12  Ohio,  237. 

This  form  can  be  easily  changed  to  adapt  it  to  any  election. 

231.    FOR    CONVERSION   OF    GOODS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff,  on  the         day  of  ,  a.  n.  18     ,  was  the 

owner  and  lawfully  possessed  of  certain  goods  and  chattels,  to  wit, 
(here  describe  them,)  which  goods  and  chattels,  afterward,  on  the 
said         day  of  ,  a.  d.  18     ,  came  to  the  possession  of  the  said 

defendant  ;  and  the  said  defendant,  contriving  to  injure  the  said 
plaintiff,  did  afterward,  on  the  said         day  of  ,  a.  d.  18 

wrongfully  convert  the  said  goods  and  chattels,  of  the  value  of 
,  to  his,  the  said   defendant's,  own  use  and  benefit;  to  the 
damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

The  goods  must  be  specifically  described.  The  following  will 
serve  as  examples  :  (ten  oxen,  five  cows,  ten  sheep,  six  horses,  geld- 
ings, mares,  two  wagons,  ten  plows,  ten  bureaus,  ten  tables,  fifty 
<bairs.  one  fiat-boat,  one  steamboat  called  the  ,  one  hundred 

yards  of  sheeting,         of         calico,         of  drilling,  five  pieces  of 
broadcloth,  etc.;  a  certain    writing  obligatory,  called  a  bond,  or 
sealed  note,  sealed  with  the  seal  of  one  N  O,  and  dated  on  tho 
vol.  i — 37 


578  FORMS    OF    PETITIONS. 


day  of  ,  a.  d.  18     ,  whereby  he,  the  said  N  O,  hound  himself 

to  pay  to  the  said  plaintiff  the  sum  of  $  ,  in  days  after  date, 
Or  in  months,  or  yours   from  date,  and   then  being  in  full  force 

and  unpaid;  also,  a  certain  bill  of  exchange,  drawn  by  one  E  F, 
upon  and  accepted  by  the  said  defendant,  or  by  one  Gr  H,  bearing 
date,  whereby  the  said  E  E  requested  the  said  (acceptor)  to  paj7  to 
the  order  of  the  said  plaintiff  the  sum  of  $         ,  in  days  after 

date,  or  at  sight,  as  fact  is,  which  bill  is  unpaid ;  and  also  a  certain 
promissory  note,  dated  on  the         day  of  ,  a.  d.  18     ,  signed 

by  one  E  F,  whereby  the  said  E  F  promised  to  pay  to  the  said 
plaintiff,  or  order,  $         ,  in  days,  or  months,  or  years  after 

date,  and  which  note  is  and  was  due  and  unpaid  ;  and  also  five 
promissory  notes,  commonly  called  bank-notes,  for  the  payment  of 
money,  and  each  of  said  bank-notes  being  for  the  payment  of  five 
dollars,  and  each  of  the  value  of  five  dollars ;  and  also  ten  half- 
eagles,  one  double-eagle,  and  one  eagle,  of  the  current  gold  coins 
of  the  United  States.) 

It  can  hardly  be  claimed  that  this  form  will  not  answer.  The 
facts  constituting  liability  are,  the  ownership  of  the  goods,  the  fact 
that  they  came  to  the  possession  of  the  defendant,  and  that  he 
converted  them  to  his  own  use.  The  only  fiction  allowed  in  a 
case  would  be  an  averment  as  to  the  finding.  Unless  this  form  be 
good,  the  plaintiff  must  declare  specially  in  each  case,  and  set 
forth  all  the  evidence  by  which  these  three  facts  are  to  be  proved- 
This  would  be  very  inconvenient,  and  tend  to  infinite  difficulty 
and  to  an  unnecessary  enlargement  of  the  record.  The  form  in 
Kellogg  v.  Slauson,  1  Kernan,  302,  merely  avers  that  the  defend- 
ant unlawfully  took  and  converted  the  goods.  But  they  may 
come  lawfully  to  the  possession  of  the  defendant,  and  then  that 
form  would  not  answer. 

The  term  converted  has  a  fixed  legal  meaning,  and  therefore  in 
using  it,  there  can  be  no  misunderstanding.  It  means  such  an  act 
of  ownership,  exercised  over  the  property  of  another,  as  author- 
izes one  to  sue  and  recover  the  value  of  it.  If  any  other  term  or 
terms  are  used,  no  one  can  tell  whether  he  has  described  acts 
which  amount  to  a  conversion,  until  the  court  has  passed  upon 
them.  This  term  also  will  shorten  pleadings  very  much,  which  is 
an  object  of  the  code,  or  ought  to  have  been. 


FORMS   OF   PETITIONS.  579 


232.    COUNT    BY    ADMINISTRATOR    FOR    CONVERSION. 

The  said  A  B,  plaintiff,  administrator  of  the  estate  of  E  F,  de- 
ceased, complains  of  the  said  C  D,  defendant,  for  that  the  said 
E  F.  in  his  lifetime,  was  owner  and  possessed  of  the  following 
goods  and  chattels,  to  wit,  (here  describe  them.)  of  the  value  of 
S  .  and  the  said  goods  and  chattels  afterward,  and  during  the 
life  of  the  said  E  F,  came  to  the  possession  and  custody  of  the  said 
defendant  ;  and  the  said  defendant  afterward,  and  during  the  life- 
time of  the  said  E  F,  well  knowing  that  said  goods  and  chattels 
were  the  property  of  the  said  E  F,  refused  and  neglected  to  de- 
liver the  same  to  the  said  E  F  in  his  lifetime,  nor  hath  the  said 
defendant  delivered  the  same,  nor  an}-  part  thereof,  to  the  said 
plaintiff,  since  the  death  of  the  said  E  F,  but  did  wrongfully,  in 
the  lifetime  of  the  said  E  F,  convert  the  same  to  the  use  of  him- 
self, the  said  defendant;  to  the  damage  of  the  said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  3  ,  his  damages  so  by  the  said 
E  F  in  his  lifetime  sustained.  - 

When  the  conversion  'is  after  the  death  of  the  owner,  the  aver- 
ment of  conversion  may  be  in  this  form :  (but  the  said  defendant 
did,  alter  the  death  of  the  said  E  F,  on  the         day  of  ,  a.  d. 

18  ,  wrongfully  convert  and  dispose  of  said  goods  and  chattels  to 
his  own  use.) 

233.     FOR   TRESPASS   TO    PERSON. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  a.  d.  18 

did  unlawfully  and  with  force  assault  the  said  plaintiff,  and  then 
and  there  beat,  bruise,  and  wound  the  said  plaintiff,  by  throwing 
him,  the  said  plaintiff,  on  the  ground,  and  then  and  there  striking 
him  sundry  blows  with  a  stick,  which  he,  the  said  defendant,  then 
and  there  had;  and  violently  kicking  the  said  plaintiff  in  and 
upon  his  right  side,  and  breaking  two  of  the  ribs  of  the  said 
plaint  ill',  and  other  wrongs  then  doing  to  the  said  plaintiff;  to  the 
damage  of  the  said  plaintiff  % 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
dofendanl  lor  the  said  sum  i  ,  his  damages  so  as  aforesaid 

sustained. 

If  special  damages  have  been  sustained,  they  must  bo  set  forth. 
After  setting  forth   the  assault,  and  before  the   averment  of  other 


580  FORMS   OP    PETITIONS. 


wrongs,  it  can  be  stated  in  this  form:  (whereby  the  said  plaintiff 
became  and  was  sick,  lame,  and  unable  to  attend  to  his  lawful 
business,  for  the  space  of  weeks  ;  and  was  compelled  to  expend 
and  did  expend  and  pay  out,  the  sum  of  $  ,  in  and  about  the 
nursing  of  said  plaintiff,  in  endeavoring  to  be  cured  of  the  said 
soreness,  bruises,  and  wounds,  so  as  aforesaid  occasioned;  to  the 
damage,  etc.) 

If  the  plaintiff's  clothes  were  torn,  that  averment  may  be  in- 
serted with  the  others  before  the  words  "  other  wrongs,"  (and  the 
said  defendant  did  also,  with  great  force,  rend  and  tear  the  panta- 
loons, waistcoat,  the  coat,  and  the  shirt  of  said  defendant,  of  the 
value  of  $  ,  which  the  said  plaintiff  then  wore  and  was  clothed 
with.) 

234.    FOR   COMMON    ASSAULT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  C  D  did,  on  the         day  of  a.  d.  18     ,  unlaw- 

fully and  with  force,  assault  the  said  plaintiff,  and  then  and  there 
beat  and  ill-treated  the  said  plaintiff,  and  other  wrongs  then  and 
there  did  to  the  said  plaintiff;  to  his  damage  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

235.    HUSBAND    AND    WIPE,    FOR   INJURY   TO   WIFE. 

The  said  A  B,  and  E,  the  wife  of  the  said  A  B,  plaintiffs,  com- 
plain of  the  said  C  D,  defendant,  for  that  the  said  defendant,  on 
the        day  of  ,  a.  d.  18     ,  unlawfully  and  with  force,  as- 

saulted the  said  E,  then  and  still  being  the  wife  of  the  said  A  B, 
and  then  and  there  beat,  bruised,  wounded,  and  ill-treated  her, 
and  other  wrongs  then  to  her  did  ;  to  the  damage  of  the  said 
plaintiffs  $ 

Wherefore  the  said  plaintiffs  pray  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  their  damages  so  as  aforesaid 
sustained. 

236.    BY    HUSBAND    ALONE,    FOR     LOSS     OF     SERVICES    AND     EXPENSES 

INCURRED. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     , 

unlawfully  and  with  force  assaulted  E,  then  and  still  being  the 
wife  of  the  said  plaintiff,  and  beat,  bruised,  wounded,  and  ill-treated 
her,  the  said  E,  so  then  being  the  wife  of  the  said  plaintiff,  by 


FORMS   OP   PETITIONS.  581 

means  whereof  the  said  E  became  and  was  sick  and  lame,  and  so 
remained  for  the  space  of  weeks,  (or,  days,)  whereby  the  said 
plaintiff,  during  all  that  time,  lost  the  services  of  the  said  E  in 
his  domestic  affairs,  and  was  compelled  to  expend  and  pay  out 
S  ,  in  and  about  endeavoring  to  heal  and  cure  the  said  E  of  the 
sickness  and  lameness  aforesaid,  and  other  wrongs  did  ;  to  the 
damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained. 

The  above  form  can  easily  be  converted  into  one  for  an  assault 
upon  a  servant,  whereby  the  master  lost  his  services,  and  paid  ex- 
penses in  cuiiing  him.  It  is  only  necessary  to  insert  the  name  of 
the  servant,  and  aver  him  a  servant  instead  of  a  wife. 

237.    FOR    FALSE    IMPRISONMENT. 

The  said  A  B.  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  A.  D.  18     ,  un- 

lawfully and  with  force  assaulted  the  said  plaintiff,  and  beat, 
braised,  wounded,  and  ill-treated  him,  and  then  and  there  im- 
prisoned him,  and  kept  and  detained  him  in  prison  there,  without 
any  reasonable  or  probable  cause  whatsoever,  for  the  space  of 
next  following,  and  other  wrongs  then  and  there  did  to  the  said 
plaintiff;  to  the  damage  of  the  said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 

sustained. 

238.    FOR   CnASING    CATTLE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  a.  d.  18     , 

and  on  divers  other  days  between  thai  day  and  the  commencement 
of  this  action,  unlawfully  and  with  force,  drove,  chased,  and  hur- 
ried the  sheep,  ewes,  and  lambs  of  the  said  plaintiff,  of  the  value 
of  I  ,  to  wit,  (ten  sheep,  ten  ewes,  etc.,)  then  depasturing  in  a 
certain  field,  (or,  parcel  of  land,)  situate  in  ,  and  then  and 

there  chased  and  drove  the  said  Bheop,  ewes,  -and  Lambs  from  off 
said  field,  (or,  parcel  <>f  land.)  to  some  place  to  the  said  plaintiff 
unknown,  (or,  to  .  if  the  place  is  known.)  whereby  the  said 

plaintiff  was  put  to  great  expense,  <<>  wit,  the  sum  of  8        ,  in  en- 
deavoring to  find  Baid  sheep    ewes,  and  lambs,  and  sheep, 
ewes,  and            lambs,  of  the  value  of  8        .  did  tlien  and 


582  FORMS    OF    PETITIONS. 


there  die,  and  oth'ers  thereof  were  injured  and  lost  to  the  said 
plaintiff;  to  Ins  damage  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

Other  cattle  maybe  embraced  in  this  count  as  well  as  sheep.  It 
is  applicable  to  cattle,  horses,  etc. 

239.    SAME — A   BRIEFER   COUNT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant  did,  on  the         day  of  ,  A.  d.  18     , 

chase  and  drive  about,  (here  state  the  cattle  or  animals  driven,)  of 
the  said  plaintiff,  of  the  value  of  $  ,  whereby  the  said 

became  and  were  greatly  damaged  and  injured,  and  ten  of  said 
were  killed,  and  were  bruised,  wounded,  and  lamed, 

etc.  (as  the  fact  may  be,  as  to  special  injury;  conclude  as  in  the 
last.) 

240.    FOR   TAKING   AND   CARRYING   AWAY   GOODS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  a.  d.  18     ,  at 

,  in  the  county  of  ,  seized,  took,  and  drove,  (or,  if  in- 

animate things,  carried,)  away  cows,  calves,  horses, 

(or,  the  following  goods  and  chattels,  to  wit,  one  wagon,  etc.,  de- 
scribing the  property  as  it  is,)  of  the  said  plaintiff,  of  the  value  of 
$  ,  then  and  there  being  found,  and  converted  and  disposed  of 
the  same  to  his  own  use;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid  sus- 
tained. 

241.  FOR  SHOOTING  DOG,  OR  OTHER  ANIMAL. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant  did,  on  the         day  of  ,  A.  d.  18     , 

unlawfully  and  with  force,  shoot  off  and  discharge  a  certain  gun, 
then  loaded  with  gunpowder  and  ball,  at  and  against  a  certain 
dog  of  the  said  plaintiff,  of  the  value  of  $  ,  and  thereby  and 
therewith  then  so  hurt  and  wounded  said  dog,  that,  by  reason 
thereof,  the  said  dog,  afterward  and  before  the  commencement  of 
this  action,  died;  (if  dog  did  not  die,  state  the  wounding,  etc.,)  to 
the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $>  ,  his  damages  so  as  aforesaid 

sustained. 


FORMS    OF    PETITIONS.  583 

242.    FOR    LETTING    BOAT    ADRIFT. 

The  said  A  B.  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant  seized  and  took  the  flat-hoat,  (ferry -hoat, 
barge,  skiff,  etc.,)  of  the  said  plaintiff,  of  the  value  of  8  .  then 
floating  and  being  in  the  Ohio  river,  at  ,  and  then  and  there 

moored  and  fastened  with  a  certain  rope  of  the  said  plaintiff,  and 
then  and  there  unmoored  and  unfastened  the  said  hoat  from  the 
said  place,  and  thereby  set  said  boat  adrift  on  said  river,  whereby 
said  boat  was  damaged  and  broken  to  pieces,  and  the  said  plaintiff 
was  wholly  deprived  of  the  use  and  benefit  thereof  for  the  space 
of  weeks,  and  put  to  the  expense  of  $  ,  in  getting  said 

boat  repaired  and  brought  back  to  the  said  place  where  it  was  as 
aforesaid  moored;  to  the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  S  ,  his  damages  so  as  aforesaid 
sustained. 

243.    FOR   TRESPASS   TO    DWELLING-HOUSES. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the         day  of  ,  a.  d.  18     ,  and 

on  divers  other  days  between  that  day  and  the  commencement  of' 
this  action,  unlawfully  and  with  force,  broke  and  entered  a  certain 
dwelling-house,  (shop,  store,  barn,  office,  smoke-house,  etc.,)  of  the 
said  plaintiff,  situate  and  being  in  ,  in  the  county  of  , 

and  then  and  there  made  a  great  noise  and  disturbance  therein, 
and  continued  therein  making  such  disturbance  for  the  space  of 
then  next  following,  and  then  and  there  forced  and  broke 
open  and  damaged  the  doors,  windows,  and  cupboards  of  the  said 
plaintiff,  of  and  belonging  to  the  said  dwelling-house,  and  broke 
and  spoiled  the  locks,  hinges,  and  bolts,  wherewith  said  doors,  etc., 
were  hung  and  fastened  ;  and  also,  during  said  time,  unlawfully, 
and  with  force,  seized  and  took  the  following  goods  and  chattels, 
to  wit.  (here  deseribe  them,)  of  the  said  plaintiff,  then  being  found 
in  said  dwelling-house,  of  the  value  of  $  ,  and  carried  the  same 
away,  and  converted  and  disposed  of  the  same  to  his  own  use, 
whereby  the  said  plaintiff  and  Ins  family,  during  all  of  said  time, 
were  greatly  disturbed,  and  the  said  plaintiff  prevented  from  car- 
rying on  his  lawful  affairs  and  business;  to  the  damage  of  the 
said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  lor  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained 


584  FORMS    OF    PETITIONS. 


24-t.    COMMON    COUNT    FOR    EXPULSION. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     , 

unlawfully  and  with  force,  broke  and  entered  the  dwelling-house, 
(shop,  church,  store,  etc.,)   of  the  said  plaintiff,  situate  in  , 

in  the  county  of  ,  and  then  and  there  ejected  the  said  plaint- 

iff and  his  family  from  the  possession,  use,  and  enjoyment  of  the 
same,   and  kept  them  so   ejected   for  the  space  of  Aveeks, 

whereby  the  said  plaintiff,  during  all  that  time,  was  deprived  of 
the  use  and  benefit  of  said  dwelling-house;  to  his  damage  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

245.    FOR   TRESPASS   TO    LAND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the         day  of  ,  a.  d.  18     ,  and  on 

divers  other  days  and  times  between  that  day  and  the  commence- 
ment of  this  action,  unlawfully  and  with  force,  broke  and  entered 
the  close  of  the  said  plaintiff,  situate  in  ,  in  the  county  of 

and  known  and  described  as  follows  :  (here  describe  the 
premises,  if  it  can  be  conveniently  done,)  and  then  and  there  broke 
open   and  damaged  gates,  panels  'of  fence,  then  being  on 

said  premises,  and  with  his  feet,  in  walking,  trod  down  the  grass 
and  corn  of  the  said  plaintiff,  of  the  value  of  $  ,  there  then 
growing,  and  with  cattle,  horses,  mares,  cows,  oxen,  etc.,  wagons, 
etc.,  (as  the  case  may  be,)  trod  down,  eat  up,  and  depastured  the 
grass,  wheat,  corn,  oats,  turnips,  etc.,  then  thereon  growing,  of  the 
value  of  $  ,  and  converted  and  disposed  of  the  same  to  his  own 
use ;  and  then  and  there  cut  down  ten  oak  trees,  ten  sugar  trees, 
etc.,  and  carried  the  same  away  and  converted  the  same  to  his  own 
use,  (or  state  any  other  use  made  of  the  land  by  defendant,  or  any 
other  injury  done  to  the  same,  as  the  case  may  be;  these  are  mere  ex- 
amples to  be  used  as  applicable;)  and  thereby,  and  during  all  that 
time,  greatly  incumbered  said  close,  and  prevented  the  said  plaintiff 
during  all  said  time  from  having  the  use,  benefit,  and  enjoyment 
thereof,  in  so  ample  a  manner  as  he  otherwise  might  and  would 
have  had ;  (where  there  has  been  an  expulsion,  it  should  be  stated,  as 
that  he  entered  and  ejected  the  said  plaintiff  therefrom,  and  kept 
him  out  of  the  possession  thereof  for  the  space  of  weeks;  so, 
too,  if  any  property  was  removed  and  converted  by  defendant,  it  should 
be  stated,  otherwise  no  recovery  can  be  had  for  that;)  and  other 


FORMS   OF    PETITIONS.  585 


wrongs  then  and  there  did ;  to  the  damage  of  the  said  plaintiff 
$ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  8  ,  his  damages  so  as  aforesaid 
sustained. 

2-16.    FOR   DIGGING   IN   A   COAL    MINE. 

The  said  A  13,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18      ,  and 

on  divers  other  days  and  times  between  that  day  and  the  com- 
mencement of  this  action,  broke  and  entered  into  the  close  of  the 
said  plaintiff,  situate  in  ,  in  the  county  of  ,  and  de- 

scribed as  follows:  {here  describe  them,)  and  then  entered  into  a 
coal  mine  or  vein  of  coal  then  being  in  said  close,  and  dug  out 
of  the  same  bushels  of  coal  of  the  said  plaintiff,  of  the  value 
of  $  ,  and  took  and  carried  the  same  away,  and  converted  the 
same  to  his  own  use  ;  to  the  damage  of  the  said  plaintiff  8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 

sustained. 

247.    FOR   TAKING   IRON   ORE,    ETC. 

(Follow  the  last  to  the  close  of  the  description  of  the  premises,  then 
proceed  as _  follows :)  and  then  and  there  dug  up  tons  of  iron 
ore,  (or,  perches  of  rock,  stone,  clay,  etc.,)  of  the  said  plaintiff,  of 
the  value  of  $  ,  and  took  and  carried  the  same  away,  and  con- 

verted the  same  to  his  own  use ;  to  the  damage  of  the  said  plaintiff 
8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  3  ,  his  damages  so  as  aforesaid 
sustained. 

248.    FOR    MESNE    PROFITS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of  ,  a.  d.  18     ,  (the 

time  when  he  first  entered,)  unlawfully,  and  with  force,  broke  and 
entered  the  close  of  the  said  plaintiff,  situate  in  ,  in  said 

county  of  ,  known  and  described  as  follows,  to  wit,  town  (or, 

city)  lot,  in  the  town  (or,  city)  of  ,  (or,  the  northwest  quar- 

ter, or,  the  northeast  quarter  of  Section  No.        ,  Town  No. 
of  Range  No.        .,  and  ejected  tin-  said  plaintiff  from  the  jx.sses- 
sion  thereof,  ami  kepi  and  continued  him  so  expelled,  from  the  said 
•lay  of  ,  a.  i>.  L8     ,  up  to  the  commencement  of  this  ac- 

tion, ami  .lining  all  lhat  time  took  and  received  to   the   use  of  the 


586  FORMS   OP   PETITIONS. 


said  defendanl  all  the  issues  and  profits  of  said  premises,  of  the 
yearly  value  of  $  ,  whereby  the  said  plaintiff  lost  all  profit  and 
benefit  from  the  use  of  said  jiremises  during  all  of  said  time;  to 
the  damage  of  the  said  plaintiff  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

This  form  will  still  answer  where  the  entry  was  made  not  over 
four  years  prior  to  the  commencement  of  the  suit.  If  entry  was 
made  over  that  time  before  suit  brought,  this  action  will  be  barred 
by  the  statute  of  limitations. 

Under  the  code,  this  count  must  be  now  included  in  the  petition 
to  recover  the  possession  of  the  real  estate,  and  if  not  so  embraced, 
it  would  seem  that  the  plaintiff  could  not  bring  a  second  action  to 
recover  the  mesne  profits.  The  word  may,  in  such  a  case,  must 
be  construed  to  mean  shall.  If  so,  the  rents  must  be  demanded  in 
the  same  action  in  which  the  possession  is  sought  to  be  recovered. 
The  plaintiff  ought  not  to  be  permitted  to  bring  two  actions,  when 
a  single  one  will  answer  all  the  purpose.  And  yet  there  will  be 
some  confusion  in  mixing  up  a  mere  question  of  title  with  the  rents 
and  profits  thereof.  It  has  been  done  in  trespass,  and  may  be  done 
in  such  a  case.  As  the  code  is,  it  would  seem  that  the  whole  claim 
must  be  made  at  once. 

249.    FOR   REPLEVIN. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff  is  the  owner  and  entitled  to  the  imme- 
diate possession  of  the  following  goods  and  chattels  :  (here  describe 
them  as  distinctly  as  possible,)  of  the  value  of  $  ,  and  that  the 
said  defendant  unlawfully  detains  the  said  goods  and  chattels  from 
the  possession  of  the  said  plaintiff,  and  has  detained  the  same  as 
aforesaid  for  the  space  of  ;  to  his  damage  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant,  that  he,  the  said  defendant,  do  return  to  the  said  plaint- 
iff the  said  goods  and  chattels,  so  unlawfully  detained,  and  for  the 
said  sum  of  $  ,  his  damages  so  as  aforesaid  sustained,  by  rea- 
son of  said  unlawful  detention. 

Where  the  ownership  is  special,  it  had  best  be  stated,  as  the  jury 
must  pass  upon  that  issue. 


FORMS    OF    PETITIONS.  587 


250.     AGAINST   A    JUSTICE    OF    THE    PEACE    FOR   NEGLECT    IN    ISSUING. 

The  said  A  B;  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  on  the  day  of  ,  a.  d.  18     ,  at 

township,  in  said  county  of  ,  did  file  with   the  said 

C  D,  he,  the  said  C  D,  then  being  a  justice  of  the  peace  for  the 
said  township  of  ,  his  bill  of  particulars  of  a  certain  action 

which  he,  the  said  plaintiff,  wished  to  bring  against  one  ,  the 

said  then  being  a  constable  in  said  township,  to  recover  from 

the  said  the  sum  of  $  ,  damages,  which  he,  the  said  plaint- 

iff, had  sustained  by  reason  of  a  false  return  made  by  the  said 

,  on  a  certain  summons  before  that  time  issued  by  the  said 
defendant,  as  such  justice,  against  the  said  plaintiff,  and  in  favor 
of  one  ,  and  did  then  and  there  request  the  said  defendant 

as  such  justice,  to  issue  process,  in  due  form  of  law,  against  the 
said  ,  and  in  favor  of  the  said  plaintiff,  as  he,  the  said  de- 

fendant, was  by  law  bound  to  do ;  yet  the  said  defendant,  not  re- 
garding his  duty  in  that  behalf,  did  not,  nor  would  issue  process, 
but  so  to  do  wholly  refused ;  to  the  injury  of  the  said  plaintiff, 
and  to  his  damage  $ 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  his  damages  so  as  aforesaid 
sustained. 

The  justice  is  liable  for  such  an  act ;  so  held  in  Powell  v.  Jones, 
12  Ohio,  35. 

251.       FOR      NEGLIGENCE     OF     BOARDING-HOUSE     KEEPER,      WHEREBY 
GOODS    WERE    LOST. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  at  the  request  of  the  said  defendant, 
became  a  guest  in  a  boarding-house  kept  by  the  said  defendant, 
and  brought  with  her,  the  said  plaintiff,  into  the  same,  the  follow- 
ing articles,  to  wit,  (here  state  the  articles,)  and  the  said  plaintiff 
so  became  a  guest,  on  the  terms  that  the  said  defendant  was  to 
provide  rooms,  bedding,  meat,  drink,  servants'  attendance,  and 
other  necessaries,  and  would  take  due  and  reasonable  care  of  the 
said  goods  of  i In-  said  plaintiff,  whilst  they  were  in  the  house  of 
the  said  defendant,  for  hire  and  reward  to  the  said  defendant  in 
thai  behalf;  and  the  said  plaintiff  saith  thai  the  said  defendant 
did  not  take  due  and  reasonable  care  of  the  said  goods  and  chattels 
whilst  so  remaining  in  his  said  boarding-house;  but  on  the  con- 


-    588  FORMS   OP   PETITIONS. 


trarv,  the  said  goods  and  chattels,  through  the  neglect  and  care- 
lessness of  the  said  defendant  and  his  servants,  became  and  were 
wholly  lost  to  the  said  plaintiff;  to  the  damage  of  the  said  plaint- 
iff 8 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  her  damages  so  as  aforesaid 
sustained. 

This  is  copied  from  the  declaration  in  the  case  of  Dansey  v. 
Eichardson,  25  Eng.  L.  &  Eq.  76.  The  court  were  divided  in 
opinion  as  to  the  extent  of  care  required  in  a  boarding-house 
keeper.  I  think  there  may  be  negligence  in  a  servant  in  leaving 
an  outer  door  of  a  boarding-house  open,  whereby  the  goods  of  a 
guest  are  stolen,  which  might  render  the  master  liable.  I  think 
there  is  a  duty  on  his  part  analogous  to  that  incumbent  on  every 
prudent  householder,  to  keep  the  outer  door  of  the  house  shut  at 
times  when  there  is  danger  that  thieves  may  enter  and  steal.  If 
he  employ  servants  to  do  this  duty,  and  they  neglect  it,  whereby 
a  loss  occurs,  he  is  responsible.  Per  Campbell,  C.  J.,  Ibid.  He 
thinks  the  keeper  bound  to  have  honest  and  faithful  servants. 

252.    PETITION    BY   WIFE   V.   ONE    SELLING    INTOXICATING    LIQUOR    TO 

HER   HUSBAND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F,  de- 
fendants, for  that  the  said  plaintiff,  on  the  day  of  ,  a.  d 
18  ,  was  the  wife  of  one  G  H,  and  that  the  said  G  H  was  then  a 
person  in  the  habit  of  getting  intoxicated,  of  which  the  said  de- 
fendants then  had  notice;  yet  the  said  defendants  did,  on  the  said 
day  of  ,  a.  d.  18  ,  sell  and  deliver  to  the  said  GH  one  gallon 
(or,  quart,  or,  pint,  as  the  case  may  be,~)  of  intoxicating  liquor, 
whereby  the  said  G  H  did  afterward,  to  wit,  on  the  said  day 
of  ,  a.  d.  18  ,  (or,  on  the  day  of  ,  a.  d.  18  ,  where  the 
intoxication  takes  place  on  a  day  subsequent,)  became,  and  was  in- 
toxicated, and  whereby,  as  the  said  plaintiff  avers,  the  said  defend- 
ants caused  the  intoxication  of  the  said  G  H ;  and  the  said  plaint- 
iff further  avers  that  the  said  G  H,  while  so  intoxicated,  was  then 
and  for  a  long  time  thereafter,  to  wit,  for  the  space  of  days, 
incapable  of  attending  to  his  usual  business  and  work,  and  the 
said  plaintiff  during  all  that  time  was  compelled  to  attend  upon 
and  nurse  the  said  G  II,  and  provide  the  said  G  II  with  necessary 
food  by  the  labor  and  industry  of  the  said  plaintiff;  and  the  said 
G  H,  while  so  intoxicated,  assaulted  the  person  of  the  said  plaintiff, 


FORMS   OF   PETITIONS.  589 


and  put  the  said  plaintiff  in  great  fear  and  danger,  and  compelled 
her.  the  said  plaintiff,  to  abandon  her  house  and  home  in  the  night 
season,  and  seek  safety  and  protection  elsewhere,  in  the  house  and 
family  of  a  neighbor;  by  reason  of  which  the  said  plaintiff  avers 
that  she  has  sustained  damages  to  the  amount  of  five  thousand 
dollars. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendants for  the  said  sum  of  five  thousand  dollars,  her  damages 
aforesaid,  in  form  aforesaid  sustained. 

A  B, 
By  ,  her  Attorney. 

This  petition  is  prepared  from  one  filed  in  the  case  of  Phillips  v. 
Richards  &  Sherer,  tried  in  the  Court  of  Common  Pleas,  in  Wash- 
ing county,  October  term,  1855.  This  is  the  first  action  of  the 
kind  'in  Ohio,  which  has  come  under  our  notice.  The  statute 
clearly  requires  all  the  averments  contained  in  this  petition  : 
First.  That  the  plaintiff  is  the  wife  of  the  person  intoxicated. 
Secondly.  That  he  was  in  the  habit  of  getting  intoxicated.  Thirdly. 
That  the  defendant  had  notice  or  information  of  this  fact. 
Fourthly.  That  the  defendant  sold  intoxicating  liquors  to  the 
husband  in  one  of  the  ways  declared  illegal  in  the  statute. 
Fifthly.  That  the  party  became  intoxicated  with  said  liquor  ;  and, 
Sixthly.  That  the  plaintiff  was  injured  by  the  husband's  being  so 
intoxicated,  in  her  person  and  means  of  support.  These  seem  to 
be  all  the  material  facts  which  constitute  a  right  of  action.  In 
setting  out  the  sale  and  delivery  of  the  liquor,  it  should  be  done  in 
Buch  terms  as  would  constitute  a  sufficient  description  of  the  offense 
in  an  information.  It  clearly  would  not  be  enough  to  aver  that 
the  defendant  sold  the  liquor  contrary  to  the  provisions  of  the  act, 
reciting  the  title;  the  sale  must  be  so  described  as  in  terms  to  show 
that  the  act  was  one  of  the  acts  prohibited  in  the  statute.  The 
particular  act  of  selling  must  bo  set  forth  specifically,  so  that  the 
party  can  have  notice  of  the  precise  act  of  selling  to  which  he  is 
to  answer. 

It  would  seem,  also,  that  the  special  damages  must  be  set  forth, 
so  that  the  defendant  may  be  prepared  to  meet  them.  The  only 
damage  which  a  wile  can  sutler  is  cither  by  injury  to  her  person, 
by  threat-,  an  assault,  <>r  a  battery,  or  in  her  means  of  support,  by 
having  her  husband  disabled  from  performing  his  usual  labor,  and 
bene.-  by  being  herself  compelled  to  perform  additional  labor,  in 
nursing  bim  and  providing  for  his  support.     In  the  ease  of  a  wile, 


500  FORMS   OP   PETITIONS. 


those  must  constitute  the  special  damages  of  which  she  may  or 
can  complain.  A  child,  also,  would  probably  be  confined  to  some 
such  special  damages. 

Where  the  plaintiff  is  not  thus  connected  with  the  party,  he 
may  set  forth  any  special  damage  he  may  sustain  by  reason  of 
the  intoxicated  person.  As  for  instance  :  he  may  recover  the  value 
of  a  horse  ruined  by  a  person  in  a  state  of  intoxication,  or  the 
value  of  any  other  property  destroyed  by  such  a  person  ;  and  also 
damages  for  a  personal  injury  inflicted  upon  him  by  an  intoxicated 
person.  But  the  special  damage  must,  in  all  cases,  be  stated  in  the 
petition,  as  happening  or  being  caused  by  a  person  intoxicated 
with  liquor,  bought  of  the  defendant. 

We  believe  it  will  be  found  that  the  above  principles  must  regu- 
late the  form  of  a  petition  in  such  an  action.  They  are  in  con- 
formity to  the  rules  which  have  heretofore  been  held  applicable 
to  special  actions  for  the  recovery  of  damages  for  a  special  injury. 

The  answer  must,  of  course,  correspond  to  the  nature  of  the 
action.  The  defendant  may  plead  a  general  denial,  which  will  put 
the  plaintiff  upon  proof  of  all  the  material  allegations  contained  in 
the  petition  ;  or  he  may  deny  specially  any  one  of  these  material 
averments. 

These  special  denials  may  be:  First.  That  the  said  plaintiff  is 
not  the  wife  of  the  person  charged  to  have  been  intoxicated. 
Secondly.  That  the  husband  was  not  in  the  habit  of  getting  intox- 
icated. Thirdly.  That  the  said  defendant  had  no  notice  that  the 
said  person  was  so  in  the  habit  of  getting  intoxicated.  Fourthly. 
That  the  defendant  did  not  sell  the  liquor  to  the  husband  in  man- 
ner and  form  as  the  plaintiff  hath  alleged.  These  are  all  the  ma- 
terial facts,  upon  the  truth  of  which  the  right  of  action  depends, 
and  on  a  failure  to  prove  any  one  of  which  the  plaintiff's  right  of 
action  must  fail. 

No  issue  can  be  taken  upon  the  averments  of  special  damages, 
since  these  are  not  issuable  facts ;  being  inserted  merely  for  the 
purpose  of  informing  the  party  for  what  special  damages  the 
plaintiff  complains.  This  would  at  least  be  the  case  where  a  wife, 
or  child,  or  parent  was  plaintiff,  because  nominal  damages  would, 
in  such  a  case,  follow  a  finding  of  the  material  facts  as  above 
stated.  In  the  case,  however,  of  a -stranger,  where  his  right  of 
action  depends  wholly  upon  the  existence  of  a  special  damage, 
then  the  defendant  might  deny  the  special  injury  complained  of; 
because,  if  this  injury  was  not  sustained  by  reason  of  the  acts  of 
the  intoxicated  person,  the  defendant  would  not,  of  course,  be 


FORMS   OP   PETITIONS.  "  591 


liable  at  all.  Hence  the  defendant  may  deny  the  averment  of 
special  damage,  since  this  is  to  deny  any  right  of  action  in  the 
plaintiff. 

253.    AN    EMPLOYER   V.    ONE    SELLING    INTOXICATING    LIQUOR    TO    HIS 
SERVANT,    WHEREBY    SPECIAL    DAMAGE   HAS   BEEN    SUSTAINED. 

The  said  A  B,  plaintiff,  complains  of  the  said,  C  D,  defendant, 
for  that  one  E  F  was,  on  the         day  of  a.  d.  18     ,  in  the  em- 

ployment of  the  said  plaintiff,  in  driving  the  horses  and  carriage 
of  the  said  plaintiff;  and  that  the  said  defendant  did  then,  while 
the  said  E  F  was  so  in  the  employment  of  the  said  plaintiff  as 
aforesaid,  sell  to  the  said  E  F,  at  the  shop  of  the  said  defendant, 
in  the  town  of  ,  in  the  count}-  of  ,  certain  intoxicating 

liquor,  to  wit,  whisky  (or,  brandy,  as  the  case  may  be,)  then  and 
there  to  be  drank  by  the  said  E  F,  and  that  the  said  E  F  did  then 
and  there  drink  the  said  intoxicating  liquor;  and  thereby  the  said 
defendant  did  then  and  there  cause  the  intoxication  of  the  said 
E  F  ;  and  the  said  plaintiff  further  avers  that  the  said  E  F,  while 
so  intoxicated,  and  while  so  in  the  employment  of  the  said  plaintiff, 
did,  on  the  said         day  of  ,  A.  d.  18     ,  by  reason  of  said  in- 

toxication, so  drive  the  said  horses  and  carriage  of  the  said 
plaintiff,  that  the  said  carriage  was  overturned,  and  the  same  was 
greatly  broken,  and  the  said  horses  greatly  injured;  to  the  dam- 
age of  the  said  plaintiff,  as  he  avers,  two  hundred  dollars. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  two  hundred  dollars,  his  damages  afore- 
said, in  form  aforesaid,  sustained. 

254.   ANOTHER   PERSON   V.    ONE    SELLINQ   INTOXICATING    LIQUOR    TO   A 
PERSON    WHO    ASSAULTS    THE    PLAINTIFF. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that   the  said  defendant  did,  on  the         day  of  ,  A.   D.  18     , 

at   his,  the  said  defendant's  shop,  situate  in  the  town  of  ,  in 

the  county  of  ,  sell  and  deliver  to  ono  E  F  one  pint  of  intoxi- 

cating liquor,  called  whisky,  to  be  then  and  there  drank  by  tho 
said  V]  V.  and  which  intoxicating  Liquor  the  Said  K  P  did  then  ami 
th<re  drink,  and  by  reason  thereof  the  said  defendant  did  then 
and  there  cause  the  intoxication  of  the  said  E  F;  and  the  said 
plaintiff  further  avers  that  the  said  E  F,  while  so  intoxicated,  ami 

by  reason  thereof,  did  then  and  there  unlawfully  assault  the  said 
plaintiff,  and  him,  the  said  plaintiff,  did   unlawfully  heat,  strike, 


592  FORMS   OF   PETITIONS. 

and  wound  ;  to  the  damage  of  the  said  plaintiff,  as  he  avers,  one 
thousand  dollars. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  one  thousand  dollars,  his  damages  afore- 
said, in  form  aforesaid,  sustained. 

This  last  form  maybe  adapted  to  all  the  cases  that  can  occur. 
The  averment  of  the  special  damage  must,  of  course,  correspond 
with  the  fact,  If  property  has  been  injured,  or  destroyed,  the 
averment  must,  of  course,  describe  the  property  so  destroyed.  In 
that  case  the  plaintiff  must  aver  that  the  said  E  F,  while  so  intoxi- 
cated, and  by  reason  thereof,  unlawfully  shot  at  and  wounded  the 
cow  (or,  horse,  etc..)  of  the  plaintiff,  or  destroyed  any  other  prop- 
erty, as  the  case  may  be. 

This  form  describes  a  sale  of  liquor  under  the  first  section  of  the 
act.  Of  course  the  sale  may  be  one  under  either  of  the  other  sec- 
tions ;  when  it  is,  it  must  be  described  as  it  would  be  in  an  infor- 
mation. The  kind  of  liquor  must  be  stated,  in  describing  a  sale 
under  section  one,  as  the  sale  of  domestic  wine,  and  ale,  and  beer 
are  not  prohibited  under  that  section.  Under  sections  two  and 
three,  it  will  be  enough  simply  to  aver  a  sale  of  intoxicating 
liquors,  as  it  is  declared  to  be  unlawful  to  sell  any  kind  of  intoxi- 
cating liquors  to  minors  or  persons  in  the  habit  of  getting  intoxi- 
cated. 

255.    WIFE    V.    ONE   SELLING   INTOXICATING    LIQUOR   TO    HUSBAND. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  A  B  is  the  wife  of  one  E  F,  and  was  such  wife  before 
and  at  the  happening  of  the  grievances,  hereinafter  set  forth,  and 
the  said  E  F  was  a  person  in  the  habit  of  getting  intoxicated  ;  and 
that  said  plaintiff  had  a  family  of  children,  depending  upon 

the  labor  of  said  plaintiff  and  E  F,  for  her  and  their  maintenance, 
nurture,  and  support;  and  that  the  said  defendant,  on  the  day 

of  ,  a.  d.  18     ,  did  sell  and  deliver,  (or,  give,  as  the  case  may 

be,)  to  the  said  E  F,  certain  intoxicating  liquor,  to  wit,  (here  state 
quantity,  one  gallon,  ten  glasses,  etc.,)  whereby  the  said  E  F  be- 
came intoxicated  and  incapable  of  doing  his  ordinary  work,  and 
did  not,  during  days,  do  and  perform  any  labor  or  work  what- 
ever ;  and  that  said  plaintiff  was  thereby  injured  in  her  means  of 
support,  in  this,  that  her  said  husband  usually  earned  when  at 
work  dollars  for  each  and  every  day's  work  performed  by  him, 
to  be  used  and  devoted  to  the  support  of  the  plaintiff  and  her  said 


FORMS   OF   PETITIONS.  593 


children,  whereas  by  said  intoxication  the  said  E  F  did  no  •work 
and  earned  nothing  during  his  state  of  intoxication,  and  the  plaint- 
iff was  thereby  deprived  of  the  said  sums  of  money  so  lost,  for  her 
support  and  that  of  her  children,  and  suffered  thereby  for  the  want 
of  necessary  food  and  clothing,  which  she  otherwise  might  have 
enjoyed,  and  was  compelled  to  labor  herself  harder  than  her  health 
would  justify  to  sustain  herself  and  family  in  necessary  food  and 
clothing,  and  was  also  compelled  to  nurse  and  attend  upon  the  said 
E  F,  while  so  intoxicated ;  to  the  damage  of  the  plaintiff  of  3 

Wherefore  she  prays  judgment  against  said  C  D  for  said  sum  of 
8         ,  her  damages  so  sustained. 

E  A,  Attorney  for  Plaintiff. 

This  is  framed  under  the  act  of  April  18,  1870.  67  Ohio  L.  101. 
Under  this  act  several  things  are  necessary  to  a  recovery:  1.  The 
saleof  the  liquor;  2.  That  the  party  became  intoxicated  from  drink- 
ing it ;  3.  The  injury  to  person,  property,  or  means  of  support.  All 
of  these  facts  are  to  be  proved,  as  I  understand  the  Supreme  Court 
to  have  ruled  in  a  case  not  yet  reported.  Such,  too,  is  the  plain 
reading  of  the  act.  If,  therefore,  one  wishes  to  prove  a  series  of 
sales  and  Mates  of  intoxication,  the  petition  must  contain  separate 
counts  on  each  sale,  because  the  intoxication  must  arise  from  a 
sale,  and  a  sale  is  a  single  and  specific  act.  The  petition,  too.  must 
state  the  particular  injury  complained  of;  it  is  not  enough  to  aver 
that  the  party  was  injured  in  his  property,  or  in  his  person,  or  in 
her  means  of  support ;  the  facts  must  be  set  forth  how  she  was 
affected  in  her  means  of  support.  The  defendant  is  not  a  party  to 
the  injury  and  can  not  be  supposed  to  be  acquainted  with  it ;  the 
plaintiff  knows  the  way  he  or  she  has  been  injured,  ami  therefore, 
by  all  the  rules  of  pleading,  is  not  allowed  to  plead  generally,  but 
is  required  to  show  how  he  or  she  is  injured.  Suppose  a  case, 
where  the  husband  is  a  man  of  wealth,  and  liquor  is  sold  him.  and 
he  get<  drunk',  can  the  wife  recover  in  such  a  case,  when  her  means 
of  supporl  are  not  diminished? 

"When  (he  fad  ot  a  sale  ami  intoxication  are  proved,  and  that  the 
injury  s.t  forth  has  been  sustained,  then  the  plaintiff  may  show 
the  conducl  of  defendant  in  selling  at  other  times,  the  tact  that  he 
knew  the  party  was  addicted  to  habits  of  intoxication,  had  been 
requested  not   to  sell,  and  any  other  conduct  on  the  pari  of  the 

idant,  showing  Ins  disregard  of  soeial  duty  and  the  happiness 
of  tin-  drunken  man's  family.      1\'.  when  intoxicated,  he  should  heat 

vol.  i     38 


59-4  FORMS    OF   PETITIONS. 


his  wife,  or  child,  or  other  person,  the  seller  would  he  responsible 
for  that  injury.  The  prior  forms  will  answer  under  this  act,  though 
the  averment  of  the  sale  being  illegal,  may  be  omitted.  And  yet 
it  is  a  grave  question,  whether  a  party  can  be  liable  to  an  action, 
for  a  sale  in  conformity  to  law.  This  section  is  part  of  a  law  reg- 
it hi  ling  the  sales  of  intoxicating  liquors,  and  declaring  what  sales 
are  legal  and  what  not.  It  would  seem  that  the  true  construction 
of  the  aet  is,  or  should  be,  that  the  sales  for  wThich  one  is  civilly 
liable,  should  be  such  sales  as  are  prohibited  by  law.  It  is  a 
strange  doctrine,  that  one  is  liable  for  an  act  which  the  law  says  is 
not  illegal. 

256.    AGAINST    ONE    FOR  OBSTRUCTING    FLOW   OF  WATER  FROM  A  MINE. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
that  before  the  committing  of  the  grievances  hereinafter  men- 
tioned, the  plaintiff,  being  possessed  of  a  certain  colliery,  (or,  coal 
mine,)  known  and  called         ,  situate  in         ,  of      ,  in  the  county  of 
,  did,  on  the         day  of  ,  a.  d.  18     ,  at  their  own  cost  and 

by  the  license  and  with  the  consent  of  the  owner  and  occupier  of 
certain  land  near  to  the  said  colliery,  make  a  water-course  in  and 
over  said  land  for  carrying  away  the  water  by  them  from  time  to 
time  pumped  for  the  said  colliery,  and  from  thence  until  and  at  the 
time  of  the  committing  of  the  grievances  hereinafter  mentioned, 
during  all  which  period  they  were  possessed  of  the  said  colliery, 
the  plaintiff  by  the  license  and  with  the  consent  of  the  said  owner 
and  occupier  of  the  said  land  enjoyed  the  advantage  of  having  the 
water  so  by  them  pumped  as  aforesaid,  flow  away  from  the  said  col- 
liery along  said  water-course  ;  that  the  license  and  consent  to  enjoy 
said  advantage,  and  the  plaintiff's  possession  of  the  said  colliery, 
continued  till  the  commencement  of  this  action,  and  still  do  con- 
tinue, and  that  the  said  license,  consent,  and  advantage  were  of 
great  value  to  the  plaintiff;  yet  the  said  defendant,  well  knowing 
the  premises,  and  contriving  and  intending  to  injure  the  plaintiff, 
did,  on  the  day  of  ,  a.  d.  18     ,  wrongfully  and  willingly 

obstruct  the  said  water-course  by  filling  the  same  up  with  earth, 
logs,  and  other  articles,  (or,  whatever  the  obstruction  was,)  and 
thereby  prevented  the  water  so  pumped  from  said  colliery  from 
flowing  along  the  channel  so  dug  by  plaintiff  as  aforesaid,  and  the 
water  was  thereby  thrown  back  onto  the  said  colliery,  by  means 
whereof  the  plaintiff  hath  sustained  great  damage  and  will  sustain 
further  damage  in  getting  rid  of  the  water  from  his  said  colliery, 


FORMS   OF   PETITIONS.  595 


and  in  the  facilities  of  working  the  same,  and  other  wrongs;  to  the 
damage  of  plaintiff  $ 

Wherefore  plaintiff  demands  judgment  against  said  defendant 
for  the  said  sum  of  S         ,  his  damages  so  as  aforesaid  sustained.  ■ 

F  G-,  Attorney  for  Plaintiff. 

This  form  may  be  found  substantially  in  the  report  of  the  case 
of  Roberts  v.  Rose,  L.  R.,  1  Exch.  82.  These  forms  may  become  use- 
ful, as  the  mining  of  coal  in  this  region  of  the  "West  is  become  a 
colossal  industry. 

257.    FOR   POLLUTING   A   "WATER-COURSE. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
that  the  plaintiff,  before  and  at  the  time  of  committing  the  griev- 
ances hereinafter  mentioned,  was  possessed  of  a  farm  at  ,  in 
the  county  of  ,  through  which  flowed  a  stream  of  water,  and 
that  the  plaintiff  was  entitled  to  have  had.  and  ought  still  to  have, 
the  use  and  benefit  of  the  water  of  said  stream  for  his  cattle  and 
other  purposes;  yet  the  said  defendant  well  knowing  the  premises, 
but  contriving  to  injure  the  plaintiff,  did,  on  the  day  of  , 
A.  D.  18  ,  and  on  divers  other  days,  wrongfully  and  unlawfully 
pollute  and  disturb  the  water  of  said  stream  so  that  it  became 
foul  and  impregnated  with  noxious  substances;  so  that  the  cattle 
of  the  plaintiff'  were  unable  to  drink  the  same,  and  the  plaintiff 
has  been  compelled  to  drive  his  cattle  to  a  distance  for  water,  and 
has  lost  the  use  and  benefit  of  the  water  of  said  stream,  whereby 
the  value  of  his  farm  was  greatly  depreciated  ;  to  his  damage  8 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  S  .  his  damages  so  as  aforesaid  sustained. 

W  T,  Attorney  for  Plaintiff. 

The  above  is  found  in  the  case  of  Moore  v.  Webb,  1  C.  B.,  N.  S. 
673;  S.  ('..  87  Eng.  C.  D.  673.  In  this  ease,  it  was  a  tannery,  situ- 
ated on  the  stream  above  the  plaintiff.  A  defense  was  interposed 
of  a  twenty  years'  aser;  but  it  appeared  that  the  tannery  had 
been  largely  enlarged  within  that  time,  so  that  the  presumption 
had  not  arisen  as  to  this  larger  quantity  of  noxious  matter  thrown 
into  the  stream  Vide  Bowen  v.  Jenkins,  6  Ad.  &  Ellis,  911;  S.  C, 
:;:;  Eng.  C.  L.  911  ;  Allan  v.  Gomme,  11  Ad.  &  E.  759;  S.  C.  39 
Eng.  0.  L.  759;  Wrighl  r.  Williams.  1  M.  &  W.  77;  Manning  v. 
Wasdalo,  5  Ad.  &  E.  758;  8.  C,  31  Eng.  C.  L.  758;  Roachdale 
Canal  Co.  v.  Radcliff,  18  Q.  B.  287;  8.  0.,  86  Eng.  C.  L.287;   Bealy 


596  FORMS   OF    PETITIONS. 


v.  Shaw,  C  East,  208.  A  party  who  fouls  a  stream  to  the  damage 
of  a  lower  proprietor  of  the  stream,  is  liable  for  the  damage. 

258.    FOR   NUISANCE    IN    IIIGIIWAY. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
thai  before  and  at  the  time  of  the  committing  of  the  wrongs  and 
grievances  hereinafter  mentioned,  there  was  and  thence  hitherto 
hath  been  a  common  and  public  highway  in  the  township  of  , 

in  said  county  of  ,  for  all  persons  to  pass  and  repass  on  foot 

and  by  and  with  horses  and  carriages,  at  all  times,  at  their  free 
will  and  pleasure ;  yet  the  said  defendant,  well  knowing  the  prem- 
ises, heretofore,  to  wit,  on  the  day  of  ,  A.  d.  18  ,  wrong- 
fully, illegally,  and  unjustly  cut,  dug,  and  excavated  a  deep  ditch 
or  trench  across  the  said  highway,  and  partially  filled  and  covered 
in  the  same  with  mud,  dirt,  and  other  soft  and  loose  materials,  and 
then  thereby  rendered  that  portion  of  said  highway  across,  over, 
and  along  the  said  ditch  or  trench  so  cut,  dug,  and  excavated  as 
aforesaid,  soft,  miry,  dangerous,  and  unsafe  to  persons  using  and 
frequenting  the  said  highway  on  horseback,  in  wTagons,  or  other- 
wise; and  the  plaintiff  saith  that  by  means  of  said  several  prem- 
ises, afterward  and  whilst  the  said  highway  remained  and  was  in 
the  said  state  and  condition  last  aforesaid,  and  before  the  com- 
mencement of  this  action,  to  wit,  on  the  day  of  ,  A.  D. 
18  ,  a  horse  of  the  said  plaintiff  of  great  value,  to  wit,  of  the 
value  of  $  ,  which  horse  the  said  plaintiff  was  then  lawfully 
riding  on  and  along  the  said  highway,  was  thrown  by  stepping  in 
and  upon  the  said  portion  of  the  highway  which  was  so  rendered 
soft,  miry,  and  dangerous,  and  unsafe  as  aforesaid,  and  thereby, 
without  the  fault  of  the  plaintiff,  the  knees  of  the  said  horse  in 
passing  over  said  place  or  ditch,  were  broken,  and  said  horse  was 
and  is  otherwise  greatly  injured,  and  rendered  of  little  or  no  use 
or  value  to  the  plaintiff,  who  was  also  then  subjected  to  and  in- 
curred great  expense  in  doctoring  and  endeavoring  to  save  said 
horse;  to  the  damage  of  the  plaintiff  $ 

Wherefore  said  plaintiff  prays  judgment  against  said  defend- 
ant for  said  sum  of  S  ,  his  damages  so  as  aforesaid  sustained. 

E  II,  Attorney  for  Plaintiff. 

This  form  is  found  in  the  report  of  the  case  of  Sadler  v.  Hen- 
lock,  4  Ellis  &  Bl.  570;  S.  C,  82  Eng.  C.  L.  570.  The  defendant 
occupied  land  by  side  of  the  highway  named  in  declaration.  The 
land  was  drained  by  a  drain,  which  passed  under  the  highway. 


FORMS    OF    PETITION"-.  597 


Having  become  obstructed,  lie  directed  a  man  called  Pearson,  to 
cleanse  out  tbe  drain  ;  P  was  no  otherwise  in  the  employ  of  the 
defendant,  being  a  common  laborer,  who  made  the  drain.  He  ex- 
ecuted the  work  with  his  own  hands,  and  defendant  paid  him  five 
shillings  for  the  job.  Defendant  did  not  interfere  with  the  work, 
nor  did  he  see  how  it  was  done ;  he  took  up  part  of  highway, 
under  which  the  drain  ran.  After  completing  the  work,  he  re- 
placed the  soil  of  highway,  but  imperfectly  and  with  insufficient 
materials  ;  and  in  consequence,  the  road  gave  way  and  the  horse 
was  injured.  The  defendant  contended  he  was  not  liable,  but  the 
court  held  that  P  was  acting  in  the  matter  as  servant  of  the  de- 
fendant, and,  therefore,  he  was  liable  for  the  injury.  Coleridge,  J. : 
"  The  defendant  was  not  called  on  by  public  authority  to  do  the 
work;  nor  was  there  any  reason  why.  if  it  could  not  be  done 
properly,  it  should  be  done  at  all.  If  the  work  had  been  done  by 
his  own  hands,  he  would  have  been  responsible.  So  he  would  if  it 
had  been  done  by  his  servant  or  by  a  common  laborer  whom  ho  had 
employed.  On  what  ground?  Because  the  party  doing  the  act 
would  have  been  employed  by  him.  Instead  of  this,  he  employs  a 
person  who  seems  to  have  been  usually  employed  in  such  work. 
Such  person  is  as  much  his  servant  for  this  purpose  as  a  domestic 
servant."  Vide  Milligan  r.  Wedge.  12  A.  &  E.  7:17:  S.  C.,  10  Bng. 
C.  L.;  Peachy  v.  Rowland,  13  C.  B.  182;  S.  C,  70  Eng.  C.  L.  182; 
Overton  v.  Freeman,  11  C.  B.  867;  S.  <'..  7:5  Eng.  C.  L.  867; 
Knight  v.  Fox.  5  Exeh.  721  :  Reedie  r.  E.  &  X.  West.  II.  R.  Co.,  4 
Exch.  I'll:  Randleson  v.  Murray,  8  A.  &  E.  109;  S.  <'..  ::.">  Eng.  C. 
L. ;  Ellis  v.  Gas  Co.,  2  E.  &  B.  7(J7 ;  S.  O,  75  Eng.  C.  L.  7<J7. 

259.    AGAINST    BAIL    TO    SHERIFF    FOR    NOT    .irsTIFYIXG,  WHEREBY  HE 
HAS    BEEN    DAMNIFIED. 

The  said  A  B.  plaintiff,  complains  of  the  said  C  D  and  E  F.  for 
that     the    said     plaintiff,     before    and    al     the    time    of    the    doing 

of  the  acta  hereinafter  mentioned,  was  sheriff  of  Baid  county  of 
.  and  there  came  to  bis  hands  as  such  sheriff  an  order  of 
arrest  granted  in  a  certain  case  pending  in  the  Court  of  Common 
Pleas,  within  and  lor  Baid  county,  wherein  one  was  plaintiff 

and  one  was  defendant,  commanding  said  plaintiff  to  am   t 

11m-  body  Of  tie'  -aid  .  and  to  hold  him  to  hail  in  the  sum  of 

,  and  that  the  said  plaintiff  did,  by  virtue  and  authority  of 
said  order  of  arr<  -t.  on  tie-        .lav  of  .  a.  i>.  H     .  arrest  the 

said  ,  within  said  county  of  ,  and  then  bad  him,  the 

Baid  ,  duly  in    custody,  and    that    the   said  C  hand    E3  F.  in 


598  FORMS   OF    PETITIONS. 


order  to  relieve  the  said  from  said  arrest,  and  from  the  cus- 

tody  of  said   plaintiff,   entered  into  an   undertaking   to  the  said 

,  in  the  sum  of  $  ,  in  the  presence  of  the  said  plaintiff, 

as  such  sheriff,  to  the  effect  that,  if  judgment  shall  he  rendered  in 
said    action   against  the  said  ,  he,  said  ,  will  render 

himself  amenable  to  the  process  of  the  court  thereon;  and  said 
plaintiff  further  saith  that  afterward,  to  wit,  on  the  clay  of 

,  a.  d.  18     ,thes:iid  (plaintiff  in  the  order,)  did  notify 

said  plaintiff  in  writing  that  he  excepted  to  the  sufficiency  of  said 
bail;  and  thereupon  the  said  plaintiff  notified  said  defendants,  and 
said  plaintiff  named   in  said  order,  to  appear  on  the         day  of 

,  A.  p.  18  ,  at  the  clerk's  office  of  said  county,  there  before 
the  clerk  of  said  court  to  justify  the  bail  in  said  action,  and  on 
said  day  the  said  defendants  were  by  said  clerk  of  said  court  ad- 
judged to  be  insufficient  bail  in  said  action,  and  the  said 
and  the  said  defendants  failed  to  give  additional  bail,  whereby 
said  plaintiff  was  by  law  left  as  bail  for  the  said  ;  and  that 

afterward,  to  wit,  at  the  term  of  said  court,  the  said 

recovered  in  said  action  a  judgment  against  the  said  for  the 

sum  of  $  ,  and  $  ,  costs  of  suit ;  and  that  the  said 

caused  an  order  of  arrest  to  be  issued  on  said  judgment  to  enforce 
the  payment  of  said  debt  and  costs,  and  that  the  said  did 

not  render  himself  amenable  to  said  last-named  process,  but  ab- 
sconded and  left  the  country,  whereby  said  plaintiff,  as  such  bail 
under  the  statute,  became  liable  to  pay  and  was  compelled  to  pay 
the  said  sum  of  $  ,  together  with  the  sum  of  $  ,  as  interest 
thereon,  together  with  said  sum  of  8  ,  the  costs  in  said  case, 

and  the  sum  of  $  ,  additional  costs  thereon,  of  all  which  said 
defendants  had  notice ;  to  the  damage  of  the  said  plaintiff  in  the 
sum  of  $ 

Wherefore  he  prays  judgment  against  said  defendants  for  said 
sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

S  N,  Attorney  for  Plaintiff. 

The  bail  failing  to  justify,  are  liable  to  the  sheriff  for  the  dam- 
ages he  may  sustain  by  reason  of  such  insufficiency.  This  liability 
came  under  consideration  in  the  case  of  Clapp  v.  Schutt,  44  N.  Y. 
104.  The  court  say:  "Complete  provision  is  made  in  law  for  the 
emergency.  The  sheriff  takes  the  bail  in  the  first  instance  upon 
his  own  responsibility,  and  then,  if  they  are  objected  to  and  fail 
to  justify,  he  is  held  as  bail;  but  the  law  allows  him  to  sue  the 


FORMS    OF   PETITIONS.  599 


bail  for  the  damages,  which  be  may  sustain  by  reason  of  their  fail- 
ure to  justify.  In  such  suit  the  bail  are  not  liable  to  the  sheriff 
upon  their  undertaking,  but  because  they  gave  it  and  have  failed 
to  justify,  and  have  thus  damnified  the  sheriff."  If  a  new  under- 
taking is  given,  on  justification  made,  it  takes  the  place  of  the 
former;  and  if  no  new  undertaking  is  given,  the  law  holds  the 
sheriff,  and  his  liability  is  taken  in  place  of  the  undertaking. 
The  bail  or  principal  may  deposit  money  in  lieu  of  bail  to  the 
action.  The  Corn  Warehouse  Co.  v.  Graber,  45  N.  Y.  391;  Mor- 
row v.  The  State.  6  Kan.  222. 

2G0.    AGAINST    ONE     ELECTED    CONSTABLE    FOR    NOT    ACCEPTING    THE 

OFFICE. 

The  township  of  complains  of  the  said  C  D,  defendant,  for 

that  heretofore,  to  wit,  at  the  regular  township  election,  held  on 
the  first  Monday  of  April,  A.  d.  18  ,  the  said  C  D  was  duly  elected 
to  the  office  of  constable  for  said  township;  and  by  the  judges  of 
said  election  was  duly  declared  elected  to  said  office;  and  that 
afterward,  to  wit.  on  the         day  of  ,  a.  d.  18     ,  the  said  C  D 

duly  notified  of  his  said  election  to  the  office  of  constable  as 
aforesaid,  according  to  the  provisions  of  the  statute;  and  that  the 
said  C  D  did  then  and  has  ever  since  refused  to  qualify  himself 
according  to  law.  for  the  said  office  of  constable,  and  to  serve  in 
and  execute  the  duties  of  said  office  within  the  time  limited  bylaw, 
and  thereby  became  liable  to  the  said  plaintiff  in  the  sum  of  two 
dollars  for  so  refusing  to  serve  in  said  office  of  constable  ;  and  that 
on  the  day  of  ,  A.  D.  18     ,  E  P,  clerk  of  said  township, 

duly  authorized,  demanded  said  sum  of  two  dollars  of  said  defend- 
ant; yet  the  said  defendant  refused  to  pay  the  said  sum  of  two 
dollars  or  any  part  thereof. 

Wherefore,  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  two  dollars. 

G  W  F,  Attorney  for  Plaintiff. 

Vide  Eartford  v.  Bennett,  10  Ohio  St.  1 11.  The  answer  set  up 
was  thai  at  said  election  he  was  elected  supervisor  of  a  road  dis- 
trict, and  qualified  for  that  office  and  served  therein.  This  answer 
was  held  sufficient,  as  a  citizen  could  not  be  held  to  serve  in  two 
offices  at  the  same  time. 


600  FORMS   OF   PETITIONS. 


261.    AGAINST   AGENT    REPRESENTING    HE    HAS   AUTHORITY   WHEN    HE 
KNOWS    HE    HAS    NOT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  before  and  at  the  time  of  committing  the  grievances  herein- 
after stated,  a  church  was  in  the  course  of  erection  at  ,  in  said 
county  of  ,  of  which  church  the  Rev.  was  incumbent 
and  minister,  and  active  in  causing  and  procuring  said  church  to 
be  built,  and  that  the  said  defendant  had  been  and  was  employed 
as  architect  to  superintend  the  said  works  and  building ;  and  that 
said  defendant  so  being  such  architect  employed  as  aforesaid,  did, 
on  the  day  of  ,  a.  d.  18  ,  falsely  and  fraudulently 
represent  and  pretend  that  he,  said  defendant,  was  authorized  by 
the  said  Rev.  to  order,  and  did  order,  certain  stone  of  the 
plaintiffs  for  the  building  of  the  said  church  for  and  on  account  of, 
and  to  be  charged  to  the  said  Rev.  ,  and  did  then  and  there 
falsely  and  fraudulently  write  and  send  to  the  said  plaintiffs  a 
certain  order  for  seven  hundred  feet  of  stone,  to  be  sent  to  , 
and  to  be  charged  to  the  said  Rev.  ;  and  that  the  said  plaint- 
iffs, relying  on  said  representation  of  the  defendant,  and  believing 
that  the  said  defendant  had  authority  from  the  said  Rev.  to 
order  the  said  stone  for  the  building  of  said  church  for  and  on 
account  of,  and  to  be  charged  to  said  Rev.  ,  forthwith  upon 
the  receipt  of  said  order  of  the  defendant,  did  send  and  deliver  the 
seven  hundred  feet  of  stone  so  ordered  as  aforesaid,  and  the  same 
was  there  used  and  worked  up  in  building  of  said  church  ;  whereas, 
in  truth  and  in  fact,  the  said  defendant  was  not,  as  he  then  very 
well  knew,  authorized  by  the  said  Rev.  to  order  the  said 
stone,  or  any  stone,  for  or  on  account  of,  or  to  be  charged  to  said 
Rev.  ,  or  to  write  and  send  said  order  to  the  plaintiff  as 
aforesaid  mentioned ;  but  that  he,  said  defendant,  then  very  well 
knew  that  the  representation  aforesaid  was  false  and  not 
true;  and  the  plaintiffs  further  aver  that  the  said  Rev. 
refused  to  pay  for  said  stone  and  the  same  being  wholly  unpaid 
for,  the  said  plaintiffs,  confiding  in  the  said  representation  of  said 
defendant,  sued  the  said  Rev.  in  this  court  in  an  action  for 
the  price  of  said  stone,  amounting  to  the  sum  of  $  ,  which  action 
the  said  Rev.  defended  and  denied  bis  liability  thereon,  and 
which  action  was  afterward,  to  wit,  at  the  term  of  this  court, 
tried,  and  a  verdict  and  judgment  was  then  and  there  rendered  in 
favor  of  said  Rev.  ,  and  against  these  plaintiffs,  upon  the 
ground    that    said   defendant    had   no   authority   from    the   said 


FORMS   OF   PETITIONS.  G01 


Rev.  to  order  or  send  for  said  stone  to  be  charged   to  said 

Rev.  ;  whereupon  and  by  reason  of  the  premises,  the  said 

plaintiffs  have  not  only  lost  the  price  of  said  stone,  which  had  not 
Yet  been  paid,  but  also  expended  and  had  become  liable  to  pay 
divers  large  sums  of  money,  amounting  to  the  sum  of  $  ,  in  the 
unsuccessful  prosecution  of  said  action,  and  also  had  become  liable, 
and   were    liable,   and  bound  to   pay  to  the   said  Rev.  the 

further  sum  of  8  ,  for  his  costs  in  and  about  the  said  action  by 
him  duly  expended  and  taxed  in  defending  said  action;  and  all  to 
the  damage  of  said  plaintiffs  8 

Wherefore  said  plaintiff  prays  judgment  against   said  defendant 
for  the  said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

T  R,  Attorney  for  Plaintiff. 

The  above  is  the  declaration  in  the  case  of  Randells  v.  Trimen, 
18  C.  B.  78G;   S.  C.,   86  Eng.  C.  L.  786.     In  that  case  and  the 

3  there  referred  to.  the  whole  law  on  this  Subject  is  disc: 
and  summed  up.  Jervis.  C.  J.,  said:  "In  the  notes  to  Thompson 
V.  Davenport,  9  B.  &  C.  78;  S.  C,  17  Eng.  C.  L.  78,  in  2  Smith 
b,  f  ed.  301,  the  learned  editors  state  that  in  the 
luminous  judgment  delivered  in  Snioiit  v.  Ilberv.  Ill  31.  A:  W.  1, 
the  cases  where  agents  have  been  held  to  be  personally  responsible, 
are  divided  into  three  classes:  1.  Where  the  agent  makes  a 
fraudulent  representation  of  his  authority  with  intent  t<>  deceive. 
2.  Where  he  has  no  authority,  and  knows  it.  but  nevertheless  makes 
the  contract  as  having  such  authority.  3.  Where,  not  having  in 
fact  authority  to  make  the  contract  as  agent,  he  yet  does  BO 
the  bona  fide  belief  that  such  authority  is  vested  in  him;  as  in  the  case 
ot  an  agent  acting  under  a  tinged  power  of  attorney,  which  he  be- 
lieves to  be  genuine  and  the  like.  As  to  the  form  of  the  action,  the 
note  goes  on  to  say,  in  which  agents  within  these  three  classes  can 
ade  liable,  it  has  been  seen  that  (according  to  recent  decisions 
not  yet  perhaps  universally  assented  to)  they  can  not  be  sued  upon 
tli-  contracts,  which  they  have  entered  into  without  authority,  on 
h.  half  of  their  assumed  principals,  unless  they  can  he  shown  to  he 
thcm-elv(  s  principals,  li  seems  clear,  however,  that  agents  within 
the  first  and  second  classes  would  he  liable  in  an  action  of  deceit 
for  false  representation,  although  it  is  conceived  that  thai  form  of 
action  would  noi  be  applicable  to  the  case  of  agents  within  the 
third  class,  the  representation  of  authority  being  bona  fide. 

to  Palseyu.  Freeman,  3  Term,  51;  hut  see  per  Erie,  J.,  in 
Jenkins  v.   Hutchinson,  13  <,>.   15.  748;  S.  0.,  66   Eng.  C.   L.  748. 


C02  FORMS   OF    PETITIONS. 


An  action,  however,  on  an  implied  contract  for  the  existence  of  the 
authority  each  professed  to  have,  would  appear  to  include  all  three 
classes.  '  Lewis  v.  Nicholson,  IS  Q.  B.  503;  S.  C.,  8.3  Eng.  C.  L.  503, 
is  also  a  very  strong  case."     Palhill  v.  Walter,  3  B.  &  Ad.  114. 

The  case  of  Smout  v.  Ilbcry,  10  M.  &  W.  1,  was  a  case,  where 
the  husband  having  gone  to  India,  and  died  on  the  way,  his  Avife 
continued  to  deal  with  plaintiff  after  as  before  the  date  of  the  death, 
and  she  was  sued  for  goods  sold  and  delivered.  The  court  had 
decided  in  Blodes  v.  Free,  9  B.  &  C.  1G7;  4  Man.  &  By.  282,  that  in 
such  a  case,  the  executors  of  the  husband  were  not  liable.  Alder- 
son,  B.,  says  :  "  If,  then,  the  true  principle  derivable  from  the  cases 
is  that  there  must  be  some  wrong  or  omission  of  right  on  the  part 
of  the  agent,  in  order  to  make  him  personally  liable  on  a  contract 
made  in  the  name  of  the  principal,  it  will  follow  that  the  agent  is 
not  responsible  in  such  a  case  as  the  present.  And  to  this  conclu- 
sion we  have  come."  In  Cassidy  v.  McKenzie,  4  W.  &  S.  282,  it 
was  held  that  payment  to  an  agent  after  death  of  principal,  made 
in  ignorance  of  that  fact,  was  good.  A  majority  of  the  Supreme 
Court  of  Ohio  held  that  where  an  agent  made  a  sale  of  land  after 
the  death  of  the  principal,  the  heirs  were  bound  by  the  contract. 
Ish  v.  Crane,  8  Ohio  St.  520.  This  case  has  hardly  any  authority 
to  stand  on  ;  and  if  an  authortity  at  all,  must  be  limited  to  the 
particular  facts  of  that  case.  In  New  York,  it  has  been  held  that, 
an  agent  who  makes  a  contract  in  the  name  of  another  without 
authority,  is  personally  liable.  Much  v.  Smith,  7  Wend.  315 ; 
Clark  v.  Foster,  8  Yt.  98  ;  Sinclair  v.  Jackson,  8  Cowen,  543 ;  Ballow 
v.  Talbot,  1G  Mass.  461 ;  Loing  v.  Stewart,  1  Watts  &  S.  222;  Edings 
v.  Brown,  1  Richardson,  (S.  C.)  255;  Bank  of  Hamburg  y.  Wray,  4 
Strobhart,  87 ;  Tefts  v.  York,  4  Cush.  371 ;  Johnson  v.  Smith,  21 
Conn.  027;  Ivecnor  v.  Harrod,  2  Md.  03.  One,  who  contracts 
professedly  for  another  without  authority,  does  not  render  himself 
liable  upon  the  contract  as  a  party  to  it ;  but  the  remedy  against 
him  is  by  a  special  action  on  the  case.  Ballow  v.  Talbot,  16  Mass. 
461 ;  Long  -v.  Colburn,  11  Mass.  97.  The  remedy  in  these  cases 
would  seem  to  be  settled  b}^  the  remarks  of  Jervis,  C.  J.,  above  :  An 
action  for  fraud  in  the  first  two  classes  of  cases,  and  an  action  on 
the  implied  promise  that  he  had  authority  in  the  last  case. 

262.    AGAINST    AGENT    ON    CONTRACT    FOR   NOT    HAVING   AUTHORITY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  the  day  of    •  ,  a.  d.  18     ,  as- 

sumed to  and  promised  the  said  plaintiff  that  he  had  authority,  as 


FORMS   OF   PETITIONS.  G03 


agent  of  one  E  F,  to  contract  on  his  behalf  and  in  his  name,  and 
so  as  to  bind  the  said  E  F  by  such  contract,  and  the  plaintiff  re- 
lying on  said  promise  of  said  defendant,  did  then  and  there, 
through  said  defendant  as  such  agent,  agree  with  the  said  E  F  as 
follows,  that  is  to  say,  (here  set  out  the  contract,  whatevi  r  it  may  have 
been,  and  in  its  letter  or  legal  effect,  and  then  proceed ;)  but  the  said 
plaintiff  saith  that  the  said  defendant  was  not  in  truth  and  in  fact 
so  authorized  hy  the  said  E  F  to  make  said  contract  in  his  name, 
nor  to  bind  him  in  any  wise  in  such  matter,  and  the  said  E  F  has 
wholly  and  absolutely  refused  to  execute  and  carry  out  said  con- 
tract according  to  the  terms  and  stipulations  thereof,  whereby  the 
plaintiff  has  utterly  lost  all  profits  he  would  have  made  on  said 
contract,  if  the  said  E  F  had  been  bound  thereby;  to  his  damage 
S 

"Wherefore  he  prays  judgment  against  said  C  D  for  said  sum  of 
8         ,  his  damages  so  as  aforesaid  sustained. 

E  F,  Attorney  for  Plaintiff. 

This  issue  on  this  form  will  be  a  denial  that  he  assumed  and 
promised  that  lie  was  the  agent  of  the  party  named.  The  assump- 
tion is  one  which  the  law  implies,  and  is  therefore  proved  by  the 
fact  that  he  acted  as  agent,  and  had  no  authority  so  to  do.  The 
damages,  a-  the  recovery  is  for  damages,  and  not  for  a  specific  sum 
with  interest,  will  depend  upon  the  nature  of  the  contract;  and 
the  petition  Bhonld  vary  its  particular  statement  to  correspond  with 
the  nature  of  the  contract;  and  these  averments  must  be  so 
changed  as  to  correspond  with  the  conditions  and  terms  of  the 
contract,  and  no  form  can  anticipate  the  variety  of  these  conditions 
and  the  forms  in  which  the  grounds  for  damages  are  to  be  stated. 
The  party  can  not  be  sued  on  the  contract,  because  he  has  made 
none.  Ii  the  agent,  pretending  to  be  agent  of  an  undisclosed 
principal,  bas  in  fact  no  principal  lor  whom  he  specifically  assumes 
to  contract — in  such  case  the  agenl  contracts  for  himself,  because 
in  that  case,  having  qo  pretended  principal,  he  is  his  own  princi- 
pal. But  when  he  contracts  for  a  known  principal,  there  is  no 
contracl  with  himself;  and  bence  be  can  not  be  sued  on  the  con- 
tract. 

263.    FOB    ICALICIOUSLT    PROSEI  PTING    PLAINTIFF    IN    BANKRUPT!  v. 

The  Baid  A  B,  plaintiff,  complains  of  the  said  C  I>.  defendant, 
for  that  ai  the  time  of  filing  the  petition  hereinafter  mentioned, 
the  Said  plaintiff  had  not  committed  an  act  Of  bankruptcy,  nor  was, 


604  FORMS    OP   PETITIONS. 


at  the  lime  of  filing  said  petition  hereinafter  mentioned,  subject  or 
liable  to  have  any  petition  or  proceedings  in  bankruptcy  issued  or 
prosecuted  against  him  in  bankruptcy  under  the  law  of  Congress 
in  relation  to  bankruptcy;  yet  tbe  said  defendant,  well  knowing 
the  premises,  but  falsely  and  maliciously,  and  without  reasonable 
or  probable  cause  therefor,  did,  on  the         day  of  a.  d.  18     , 

under  the  bankrupt  law  of  the  United  States,  file  in  the  District 
Court  of  the  United  States,  within  and  for  the  District  of  ,  a 

petition  against  said  plaintiff  for  an  adjudication  of  bankruptcy, 
and  falsely  and  maliciously,  and  without  reasonable  or  probable 
cause,  prosecuted  said  petition  and  the  proceedings  thereon  in  said 
court ;  and  such  proceedings  were  had  thereon  that  afterward,  to 
wit,  on  the  day  of  ,  A.  d.  18     ,  said  petition  was  heard, 

and  the  same  was  dismissed  b}T  said  court  at  the  costs  of  said  de- 
fendant, and  the  said  proceeding  and  prosecution  wholly  ended  and 
terminated  ;  and  thereby  and  by  reason  thereof  the  said  plaintiff 
was  put  to  great  trouble  and  expense  in  defending  said  petition 
and  prosecution,  and  in  employing  counsel  therefor,  and  to  great 
losses  in  his  business  by  reason  thereof,  and  to  the  great  injury  of 
the  credit  of  said  plaintiff;  to  his  great  damage  $ 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  $        ,  his  damages  so  as  aforesaid  sustained. 

THOS.  II.,  Attorney  for  Plaintiff. 

Vide  Farley  v.  Danks,  4  Ellis  &  Bl.  493 ;  S.  C,  82  Eng.  C.  L.  493 

2G4.  AGAINST  CONSTABLE  FOR  NOT  RETURNING  EXECUTION  ISSUED 
BY  MISTAKE  AGAINST  TWO,  WHEN  JUDGMENT  WAS  RENDERED  ONLY 
AGAINST    ONE. 

The  said  D  P  complains  of  the  said  A  S  and  F  D,  defendants, 
for  that  heretofore,  to  wit,  on  the         day  of  ,  A.  D.  18     ,  the 

said  defendants,  by  their  certain  writing  obligatory  of  that  date, 
acknowledged  themselves  to  be  held  and  firmly  bound  unto  the 
State  of  Ohio  in  the  sum  of  $  ,  and  which  writing  obligatory 
was  and  is  subject  to  a  condition  thereunder  written,  and  which 
condition  is  in  the  words  following ;  that  is  to  say,  that  the  above- 
bound  A  S  was  duly  elected  to  the  office  of  constable  of  town- 
ship, in  said  county  of  ,  Ohio,  on  the  day  of  ,  A.  D. 
18  .  Now,  the  condition  of  this  obligation  is  such  that,  if  the  said 
A  S  shall  faithfully  receive,  keep,  and  pay  over  to  the  proper  per- 
son or  authority  all  moneys  which  may  come  to  his  hands  by  vir- 
tue of  his  said  office  as  constable,  as  aforesaid,  and  duly,  honestly, 


FORMS    OP    PETITIONS.  605 


and  faithfully  perform  all  and  singular  bis  duties  as  such  consta- 
ble, according  to  law,  during  his  continuance  in  office  and  until  his 
successor  is  duly  elected  and  qualified,  then  these  presents  shall  be- 
come void,  otherwise  to  be  and  remain  in  full  virtue  and  force. 
And  the  plaintiff  further  saith  that  the  said  A  S  did  thereupon 
take  upon  himself  the  duties  of  said  office  of  constable  ot  said 
township,  in  said  county  of  ,  and  assumed  to  act,  and 

did  act.  as  such  constable  at  the  time  of  committing  the  wrongs 
and  grievances  hereinafter  stated.  And  the  plaintiff  further  avers 
that,  on  the         da}*  of  ,  a.  d.  18     ,  one  A  S  O  recovered  a 

judgment  for  8  debt,  and  8  costs  of  suit,  against  one  J  O, 
by  the  consideration  of  cne  E  J,  he,  the  said  R  J,  then  being  a 
justice  of  the  peace  within  and  for  said  township  of  ,  in  said 

county  of  ,  in  a  certain  action  then  pending  before  said  jus- 

tice of  the  peace,  wherein  the  said  A  S  0  was  plaintiff,  and  the 
said  J  0  and  the  said  plaintiff  were  defendants;  and  that  after- 
ward, to  wit,  on  the  day  of  ,  a.  D.  18  ,  the  said  justice 
of  the  peace  issued  an  execution  in  said  action  against  the  said 
J  0  and  the  said  plaintiff,  D  P,  to  satisfy  said  debt  and  co>ts.  as 
upon  a  judgment  against  both  said  J  0  and  said  plaintiff,  D  P, 
when  in  truth  said  judgment  A\as  a  judgment  against  said  J  O 
alone,  and  the  justice  then  and  there  delivered  said  writ  of  execu- 
tion 80  issued  to  the  said  A  S  as  constable  aforesaid  ;  and  that  the 
said  A  8  levied  said  execution  so  issued  upon  one  gray  mare  of  the 
said  plaintiff,  D  P,  of  great  value,  to  wit,  of  the  value  of  $  ,  to 
satisfy  said  execution,  and  advertised  said  gray  mare  for  sale,  and 
did  sell  the  same  at  public  auction,  on  the  day  of  ,  a.  d. 
18  ,  to  said  A  M  I>,  for  the  sum  of  8  ;  but  the  plaintiff  avers 
that  the  said  justice,  having  become  satisfied  of  the  error  in  the 
issue  of  said  execution,  did.  before  said  day  of  sale,  notify,  verbally, 
said  constable.  A  S,  and  in  writing,  on  the  day  of  sale  and  before 
said  sale,  to  return  said  execution,  as  there  was  an  error  in  the 
issue  of  the  same,  in  including  therein  the  name  of  the  said  plaint- 
iff, I'  I'.  as  a  party  defendant  to  said  judgment  and  in  said  execu- 
tion, in  order  that  said  error  might  lie  corrected,  by  omitting  the 
name  of  said  plaintiff,  ami  that  if  he.  said  A  S.  proceeded  in  said 
sah-.  it  would  be  at  his  own  peril,  and  without  authority  in  law; 
and  that  said  constable,  -\  S,  at  the  time  said  judgment  was  ren- 
dered,    well    knew    that     .-aid    judgment    was    not     by    said    justice 

rendered  against  said  plaintiff,  but  against  said  .)  o  alone;  that 

tic-  plaint  ill'  also,  before  Said  'lay  Of  Bale,  notified  said  A  S.  consta- 
ble as  aforesaid,  of  the  error  in  the  issue  of  said  execution,  and 


COG  FORMS   OP   PETITIONS. 


thai  said  A  S  was  well  aware  of  and  knew  all  of  the  facts  afore- 
said ;  yet  the  said  A  S,  as  such  constahle,  maliciously  intending  to 
injure  said  plaintiff,  and  make  the  amount  of  said  execution  by  the 
sale  oi  said  gray  mare  so  levied  on,  as  said  A  S  well  knew  that  said 
.1  ( >  was  wholly  insolvent,  and  nothing  could  be  made  of  said  J  O, 
maliciously  and  willfully  refused  to  return  said  execution,  that  the 
same  mighl  be  corrected  by  omitting  the  name  of  the  plaintiff, 
D  P,  and  willfully  and  maliciously  proceeded  to  sell,  as  aforesaid, 
said  gray  mare,  the  property  of  said  plaintiff,  levied  on  as  afore- 
said, whereby  said  A  S,  as  such  constable,  was  guilty  of  misconduct 
and  malfeasance  in  his  said  office  of  constable,  and  did  not  honestly 
and  faithfully  perform  his  said  duties  of  constable  in  this  behalf, 
but  did  willfully,  and  maliciously,  and  wrongfully  use  said  execution, 
so  issued  erroneously,  in  order  and  with  the  intention  of  maliciously 
and  willfully  injuring  said  plaintiff;  to  his  damage  $ 

Wherefore  said  plaintiff  demands  judgment  against  said  defend- 
ant for  $         ,  his  damages  so  as  aforesaid  sustained. 

S  N,  Attorney  for  Plaintiff. 

This  is  not  a  count  in  trespass,  but  an  action  for  maliciously 
using  erroneous  process,  knowing  it  to  be  erroneous,  to  the  injury 
of  another.  As  against  a  constable  or  sheriff,  he  can  jnstif}1-  an 
action  of  trespass  by  a  process  regular  on  its  face  ;  but  after  notice 
of  the  error  in  its  issue,  he  is  guilty  of  a  malicious  use  of  the  pro- 
cess to  the  injury  of  another.  In  the  case  of  Tomlinson  &  Sperry 
v.  Warner,  9  Ohio,  103,  the  court  held  that  an  action  for  malicious 
prosecution  would  lie  against  one  who  sued  out  an  attachment  to 
the  injury  of  the  plaintiffs  without  probable  cause.  The  case,  in 
principle,  holds  that  any  malicious  use  of  legal  process  to  the  in- 
jury of  another  will  sustain  an  action.  "  The  general  rule  is," 
says  Wood,  J.,  "that  for  every  injury  the  law  gives  redress;  and 
it  would  be  a  reproach  to  the  administration  of  justice,  if  one,  by 
perjury,  could  take  from  another  the  control  of  his  property,  under 
form  of  laiv,  and  the  law  afford  no  remedy.  Nice  technicalities  are 
sometimes  applied  to  get  rid  of  a  hard  case;  but  when,  under  form 
of  law,  opportunity  is  sought  to  gratify  malice  to  the  injury  of  an- 
other, courts  will  not  be  able  to  avoid,  but  rather  seek  ground  to 
sustain,  an  action."  So  in  Closson  v.  Staples,  42  Vt.  209  ;  S.  C,  1 
Am.  31G,  it  was  held  that  where  a  civil  suit  was  commenced  and 
prosecuted  maliciously  and  without  reasonable  or  probable  cause, 
and  is  terminated  in  favor  of  the  defendant,  the  plaintiff  in  such 
suit  is  liable  to  the  defendant  in  an  action  for  the  damages  sus- 


FORMS   OF   PETITIONS.  607 


tainecl  by  him  in  defense  of  that  original  action,  in  excess  of  taxa- 
ble costs  obtained  by  him  ;  and  to  maintain  an  action  to  recover 
such  damages,  it  is  not  material  whether  the  malicious  suit  was 
commenced  by  process  of  attachment,  or  by  summons  only.  The 
case  of  Whipple  v.  Fuller.  11  Conn.  581,  is  to  the  same  effect.  Wil- 
liams. J.,  in  the  case  of  Cotterel  v.  Jones,  7  Eng.  L.  &  Eq.  475,  Bays : 
"If  such  an  action  be  brought  and  prosecuted  maliciously,  and 
without  reasonable  and  probable  cause,  I  think  there  is  no  doubt 
an  action  will  lie  for  it.  provided  legal  damages  have  been  sus- 
tained." 

The  English  rule  is  that  costs  are  a  compensation  for  the  dam- 
ages sustained  in  bringing  a  groundless  action,  though  maliciously 
brought.  But  in  Ohio,  there  are  no  costs  but  for  the  costs  in 
court ;  hence  the  English  rule  is  not  applicable  here.  The  rule  of 
the  common  law  was  in  early  time  different  in  England.  In 
1  Comyn's  Dig.  313  (Action  on  the  Case  A),  the  rule  is  stated  that 
an  action  on  the  case  lies  for  procuring  an  action  to  be  brought 
against  another  maliciously.  P.  X.  B.  116.  So  case  lies  for  falsely 
and  maliciously  suing  out  a  commmission  of  bankruptcy,  which 
was  superseded.  2  Wilson,  145.  So  in  Co.  Lit.  161  a,  n.  4,  it  is 
said  :  "  Where  a  civil  suit  is  commenced  falsely  and  maliciously, 
ami  for  the  mere  purpose  of  vexation,  it  is  actionable."  Atwood 
v.  Manger,  Styles.  378;  Waterer  v.  Freeman,  Hob.  205,  266.  So 
an  action  for  a  malicious  prosecution  will  lie,  when  the  creditor  in 
an  execution  directed  the  sheriff  to  seize  and  sell  plaintiff's  goods 
to  a  much  greater  amount  than  the  sum  due.  Sommer  v.  Wilt, 
4  Serg.  &  Eawle,  19.  So  when  defendant  caused  the  plaintiff's 
goods  to  be  attached  in  a  civil  suit  without  any  probable  cause. 
Shaver  r.  White,  6  Munf.  110;  Ellis  v.  Tilman,  3  Call,  3;  Young 
V.  'iregory,  3  Call,  446.  These  authorities  show  that  at  common 
law  any  malicious  use  of  legal  process  of  any  kind  to  the  injury 
of  another,  will  sustain  an  action  ;  and  it  ought  to.  because  no  one 
should  escape  liability  to  the  party  injured  by  the  malicious  abuse 
of    legal    process.      The   statute   iii    England   giving  costs,  was  sup- 

posed  to  provide  a  Bufficienl  remedy  for  the  prosecution  of  a 
groundless  action.  But  there  is  a  wide  difference  between  good 
faith  and  had  faith  in  the  use  of  legal  process,  and  the  court-  are 
coming  to  that  conclusion,  in  this  country  costs  are  no  compen- 
sation lor  BUCh  an  injury. 


COS  FORMS   OF   PETITIONS. 


2G5.    FOR   MALICIOUS   PROSECUTION   IN   CIVIL   SUIT. 

The  said  A  B  complains  of  the  said  C  D,  for  that  before  the  com- 
mitting of  the  grievances  hereinafter  mentioned,  to  wit,  on  the 
day  of  ,  A.  D.  18     ,  a  certain  promissory  note  in  writing,  dated 

the         day  of  ,  a.  d.  18     ,  and  made  by  the  plaintiff,  for  the 

payment  to  the  order  of  of  the  sum  of  dollars  and 

cents,  at  months  from  date,  and  indorsed  in  blank  by  the  said 
(the  payee)  had  been  delivered  so  indorsed  by  the  said  (payee)  to 
the  said  defendant  ,  as  a  security  for  the  payment  of  a  cer- 

tain other  promissory  note  in  writing,  dated  the  day  of  ,  A.  d. 
18     ,  and  made  by  one  ,  for  the  payment  to         ,  or  order,  for 

the  payment  to  him  of  dollars  and  cents,  at  months 

after  the  date  thereof  as  aforesaid,  and  indorsed  by  ,  and  then 

held  by  said  defendant  ,  and  upon  the  terms  that  the  said 

promissory  note  of  $  should  be  returned  by  said  defendant 
to  the  plaintiff,  upon  the  said  note  for  a  ,  being  fully  paid  and 
satisfied  ;  and  that  there  never  was  any  other  value  or  considera- 
tion than  as  aforesaid  for  the  making  or  payment  of  said  promis- 
sory note  for  $  ,  by  the  plaintiff,  or  for  the  indorsement  or  pay- 
ment of  the  same  by  (the  indorser,)  or  for  the  defendant  ,  hold- 
ing the  same  ;  and  that  afterward  and  before  the  committing  of 
the  said  grievances,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  the 

said  (makers  and  indorsers  of  the  second  note,)  and  the  plaintiff  re- 
spectively paid  to  the  said  defendant  ,  and  said  defendant 
then  received  from  them  respectively,  $  ,  in  full  satisfac- 
tion and  discharge  of  said  promissory  note  for  $  ,  with  all  in- 
terest due  thereon  and  in  respect  thereof;  and  the  said  promissory 
note  for  $  so  paid,  and  the  lien  and  claim  of  said  defendant 
,  on  said  promissory  note  for  $  ,  then  became  and  were 
fully  satisfied,  and  it  then  became  and  was  the  duty  of  said  defend- 
ant ,  to  deliver  and  return  the  said  promissory  note  for  $ 
to  the  plaintiff;  yet  the  defendant,  well  knowing  the  premises,  but 
contriving  to  injure  the  plaintiff,  and  extort  and  obtain  from  him 
divers  moneys,  afterward,  to  wit,  on  the  day  of  ,  a.  d.  18  , 
falsely  and  maliciously,  wrongfully,  vexatiously,  and  deceitfully, 
and  without  any  reasonable  or  probable  cause,  indorsed  said  prom- 
issory note  for  $  to  one  ,  without  any  consideration 
whatever,  and  procured  the  said  ,  the  said  being  a  per- 
son wholly  irresponsible  for  costs,  and  insolvent,  to  commence  an 
action  on  said  promissory  note  for  $  against  the  plaintiff, 
maliciously  and  willfully,  and  without  any  reasonable  or  probable 


FORMS   OP   PETITIONS.  609 


cause  therefor,  in  the  Court  of  Common  Pleas  within  and  for  the 
count}*  of  ,  and  claim  in   said  action   to  recover  the  sum  of 

8  on  said  note ;  and  thus  compelled  the  now  plaintiff  to  ap- 

pear to  and  defend  the  said  action,  so  by  said  defendant 
maliciously,  and  vexatiously.  and  without  reasonable  or  probable 
cause  therefor,  procured  to  be  brought,  which  said  defendant 
maliciously,  falsely,  and  without  reasonable  or  probable  cause 
therefor,  procured  to  be  prosecuted  to  final  judgment ;  and  that  such 
proceedings  were  had  in  said  action,  that  afterward,  to  wit.  at  the 
term  of  said  court  judgment  was  rendered  in  favor  of  said 
now  plaintiff  for  his  costs,  taxed  to  $  .  and  said  action  became 
and  was  wholly  ended  and  determined  ;  and  the  plaintiff  saith  that 
thus  he  was  put  to  great  expense  in  defending  said  action,  and  was 
unable  to  collect  by  execution  from  the  said  the  costs  of  said 

action,  taxed  to  8  ,  and  was  compelled  to  employ  counsel  to  de- 
fend said  action,  at  an  expense  of  8  ,  and  to  expend  large  sums  of 
money,  to  wit.  the  sum  of  8  .  in  preparing  for  the  trial  of  said 
action,  and  hunting  and  preparing  the  testimony  for  the  trial  of 
the  same  ;  to  the  damage  of  plaintiff  $ 

Wherefore  plaintiff  demands  judgment  against  said  defendant 
for  said  sum  of  8         ,  his  damages  so  sustained. 

B  F,  Attorney  for  Plaintiff. 

This  form  is  prepared  from  that  in  the  case  of  Cotterell  v.  Jones, 
7  Eng.  L.  &  Eq.  47G.  It  is  true  that  the  court  there  sustained  a 
demurrer  to  it,  because  no  damage  was  shown,  as  the  petition  did 
not  show  a  judgment  for  costs.  But  in  this  country  a  judgment 
carries  costs.  The  decisions  in  the  United  States  will  sustain  such 
a  petition.  The  cases  of  Olosson  v.  Staples,  42  Vt.  209;  S.  C, 
1  Am.  316  ;  and  of  Whipple  v.  Fuller,  1 1  Conn.  581,  are  directly  in 
point.  But  it  would  seem  that  if  the  action  was  brought  in  the 
name  of  the  payee  of  the  note,  the  same  result  would  follow  as 
though  he  indorsed  to  a  man  of  straw,  and  induced  him  to  bring 
an  ait  ion  in  his  own  name.  No  man  has  a  righl  falsely  and 
maliciously,  and  without  reasonable  or  probable  cause,  to  com- 
mence an  action  againsl  another;  it  is  the  abuse  of  the  adminis- 
tration of  justice,  for  which  a  mere  judgment  for  costs  is  no 
compensation  for  th<-  injury  sustained.  The  following  is  the 
declaration  in  the  above-cited  ease  of  Closson  v.  Staples: 
\  oi..  j — 39 


G10  FORMS   OP   PETITIONS. 


2G6.    MALICIOUS   PROSECUTION   OP   A   CIVIL   ACTION. 

The  said  A  B,  complains  of  the  said  C  D,  for  that  heretofore, 
to  wit,  on  the        day  of  ,  a.  d.  18     ,  the  said  plaintiff,  as 

surety  for  one  E  F,  signed  with  him  a  certain  promissory 
note  of  that  date,  promising  to  pay  to  the  said  C  D  or  order  the 
sum  of  8  in  months  from  date;  and  that  the  said  E  F,  the 
principal  in  said  note,  when  said  note  became  payable,  paid  to 
the  said  C  D  the  full  amount  of  principal  and  interest  due  thereon  ; 
and  that  the  said  C  D  falsely  and  fraudulently  pretended  to  the 
said  E  F  that  said  promissory  note  had  been  lost,  and  could  not  be 
found,  so  as  to  enable  him  to  give  up  the  same  to  the  said  E  F, 
as  it  then  became  and  was  his  duty  to  do  ;  that  afterward,  to 
wit,  on  the        day  of  ,  a.  d.  18     ,  the  said  E  F  departed  this 

life  without  ever  having  got  possession  of  said  promissory  note  so 
as  aforesaid  paid  and  satisfied ;  that  after  the  decease  of  said  E  F, 
the  said  C  D  fraudulently  presented  said  promissory  note  to  the 
plaintiff,  to  wit,  on  the         day  of  ,  A.  D.  18     ,  and  fraudulently 

demanded  payment  thereof  from  this  plaintiff,  ho,  the  said  C  D, 
well  knowing  that  the  said  E  F,  the  principal  in  said  promissory 
note,  had  in  his  lifetime  paid  and  satisfied  the  same;  and  the 
plaintiff  refused  to  pay  the  money  named  in  said  promissory  note, 
as  he  told  said  C  D  the  same  had  been  paid  as  aforesaid,  and  he 
well  knew  it ;  yet  the  said  C  D,  willfully  and  maliciously  intend- 
ing to  injure,  vex,  and  harass  said  plaintiff,  did  maliciously  in- 
dorse said  promissory  note  to  one  L  M,  he,  said  L  M,  being  then  a 
person  wholly  irresponsible  and  insolvent,  and  did  willfully  and 
maliciously,  and  without  any  reasonable  or  probable  cause  there- 
for, procure  the  said  L  M  to  commence  a  suit  on  said  promissory 
note,  to  recover  the  said  sum  of  $  ,  with  interest  thereon  from 
the         day  of  ,  a.  d.  18     ,  and  that  said  suit  was  commenced 

on  the        day  of  ,  a.  d.  18     ,  in  the  Court  of  Common  Pleas, 

within  and  for  the  county  of  ,  and  such  proceedings  were 

had  in  said  action,  that  afterward,  to  wit,  at  the  term  of  said 

court,  a.  d.  18  ,  a  judgment  therein  was  rendered  in  favor  of  said 
plaintiff,  and  against  said  L  M,  for  costs  taxed  $  ,  and  that 
afterward,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  said  plaintiff 

issued  execution  on  said  judgment  against  said  L  M,  and  delivered 
the  same  to  the  sheriff  of  said  county,  and  the  same  was  duly  re- 
turned by  said  sheriff,  that  he  could  find  no  goods  or  chattels,  lands 
or  tenements,  of  said  L  M  whereon  to  levy,  and  plaintiff  avers  that 
said  L  M  was  and  is  wholly  insolvent;  and  that  said  C  D,  in  the 


FORMS   OF   PETITIONS.  611 


indorsing  of  said  promissory  note  to  L  M,  and  in  procuring  said 
action  to  be  brought  and  prosecuted  to  final  judgment,  acted  will- 
fall}*  and  maliciously,  and  without  reasonable  or  probable  cause 
therefor,  whereby  the  plaintiff  was  put  to  great  trouble,  vexation, 
and  expense  in  procuring  testimony  and  preparing  for  said  trial, 
and  employing  counsel  to  advise  him  in  said  preparation  for  said 
trial,  and  in  defending  said  action,  and  in  paying  the  said  sum  of 
8  ,  costs  taxed  to  him  in  said  action,  and  in  paying  his  attorney 
and  counsel  for  his  services  therein  8  ,  and  in  8  ,  paid  out 
by  plaintiff  for  his  necessary  personal  expenses  in  preparing,  de- 
fending, and  trying  said  action,  and  other  wrongs,  injuries,  and 
damages  by  him  sustained  in  the  premises;  to  his  damage  8 

"Wherefore  said  plaintiff  prays  judgment  against  said  C  D  for 
said  sum  of  8         ,  his  damages  so  as  aforesaid  sustained. 

L  P,  Attorney  for  Plaintiff. 

The  averment  may  be  changed  to  one  that  the  defendant  him- 
self did  willfully  and  maliciously,  and  without  reasonable  or 
probable  cause  therefor,  commence  said  action  in  his  own  name. 

2G7.  AGAINST  SHERIFF  FOR  NOT  PAYING  OVER  MONEY  MADE  ON 

ATTACHMENT. 

The  said  A  B  complains  of  the  said  C  D,  E  F,  and  G  H,  for  that 
the  said  defendants  heretofore,  to  wit,  on  the         day  of  ,  A.  D. 

18  ,  made  their  certain  writing  obligatory,  and  thereby  acknowl- 
edged themselves  to  be  indebted  to  the  State  of  Ohio  in  the  sum 
often  thousand  dollars,  for  the  payment  of  which  they  jointly  and 
severally  bind  themselves,  their  executors  and  administrators;  and 
which  obligation  had  a  condition  thereunder  written,  and  which 
condition  was  in  the  words  following,  that  is  to  say:  Whereas  the 
above-bounden  J  C  X  has  been  elected  t"  the  office  of  sheriff  of 
the  county  of  ,  at  the  general  election  therein,  on  the 

day  of  ,  A.  D.  18     .     Now,  therefore,  if  the  said  .1  CK 

shall  well  and  faithfully,  in  all  things,  discharge  the  duties  of  his 
said  office  of  shei-itl  of  said  county  of  .  during  his  continuance 

therein,  by  virtue  of  said  election,  then    this  obligation  to  be  v<'id. 

otherwise  to  he  in  full  force  ;  mid  the  said  plaintiff  avers  thai  said 
obligation  was  duly  approved  according  to  law,  and  that  said  J  < '  N 
duly  entered  upon  the  discharge  of  the  duties  of  said  office  under 
and  by  virtue  of  said  electi 

The  plaintiff  further  avers  that  afterward,  to  wit,  on  the 
day  of  ,  a.  n.  18    ,  the  said  .)  C  X.  as  such  sheriff,  received 


612  FORMS   OF   PETITIONS. 


a  large  sum  of  money  belonging  rightfully  to  said  plaintiff,  under 
and  by  virtue  of  a  certain  sale  of  goods  and  chattels  attached  on 
a  certain  order  of  attachment  issued  in  a  certain  action  pending 
in  the  Court  of  Common  Pleas,  within  and  for  said  county,  wherein 
this  plaintiff  was  plaintiff,  and  one  L  M  was  defendant,  and  which 
goods  and  chattels  were  sold  by  said  J  C  N,  as  sheriff,  under  an 
order  of  court  made  in  said  action,  and  on  said  sale  said  J- C  N 
made  the  sum  of  $  ,  and  which  sum  of  money  came  to  the 
hands  of  said  J  C  N  as  such  sheriff,  to  be  paid  over  on  the  order 
of  said  court ;  and  said  plaintiff  further  avers  that  in  said  action 
such  proceedings  were  had,  that  afterward,  to  wit,  at  the 
term  of  said  court,  he  recovered  a  judgment  thereon,  against  said 
L  M,  for  the  sum  of  $  •  ,  and  thereupon  said  court  duly  ordered 
said  sheriff  to  pay  to  said  plaintiff  the  money  so  made  by  him  on 
said  sale  of  the  goods  and  chattels  so  attached,  to  wit,  the  said 
sum  of  8  ,  after  deducting  the  costs  of  suit,  taxed  at  $  , 
and  that  then  and  there,  to  wit,  on   the         day  of  ,   A.  d. 

18  ,  the  plaintiff  demanded  of  said  J  C  N,  as  such  sheriff, 
to  pay  over  to  plaintiff  the  sum  of  $  ,  being  the  sum  in  his 
hands  after  the  payment  of  the  costs  of  said  action  and  attach- 
ment, yet  the  said  J  C  1ST  did  not,  nor  would  he  pay  over  to  the 
said  plaintiff  the  said  sum  of  $  ,  nor  any  part  thereof,  but 
wholly  neglected  and  refused  so  to  do,  whereby  an  action  hath  ac- 
crued to  the  plaintiff  against  said  defendants,  on  said  written  obli- 
gation, according  to  the  condition  thereunder  written. 

Wherefore  the  said  plaintiff  demands  judgment  against  said  de- 
fendants for  said  sum  of  money,  together  with  the  interest  due 
thereon  from  the         day  of  ,  A.  D.  18     . 

S  N,  Attorney  for  Plaintiff. 

This  form  is  made  up  from  the  statement  in  the  case  of  King  et  al. 
v.  Nichols  et  al.,  1G  Ohio  St.  80.  The  petition  in  that  case  contains 
more  than  is  necessary.  It  avers  the  election  of  Nichols  as  sheriff 
before  averring  the  giving  of  the  bond :  this  is  unnecessary,  because 
the  bond  recites  that  fact  and  the  parties  are  estopped  by  it,  even 
if  the  election  was  wholly  void  ;  the  acting  as  such  under  the  bond 
is  enough.  It  also  sets  out  in  detail  the  suit  in  attachment,  which 
is  unnecessary  ;  all  that  need  be  shown  is  that  he  received  the 
money  in  his  official  capacity,  and  that  is  shown  by  averring  that 
he  received  under  a  sale  of  attached  property  in  a  case  pending, 
and  refused  after  judgment  to  pay  it  over  on  the  order  of  the  court. 
This  form  will  answer  in  all  cases,  so  far  as  setting  forth  the  bond 


FORMS    OF    PETITIONS.  613 


and  conditition  ;  after  that  the  petition  must  contain  a  specific 
statement  of  the  default  complained  of. 

{Follow  the  last  form  up  to  the  *,  and  then  proceed  as  follows-)  and 
the  said  plaintiff  further  saith  that  afterward,  to  wit,  on  the  day 
of  ' ,  a.  d.  18  ,  he  caused  an  execution  to  be  issued  in  his  favor, 
on  a  judgment  rendered  in  the  Court  of  Common  Pleas  at  its 
term,  a.  d.  18  ,  in  favor  of  plaintiff  and  against  one  L  M,  for  the 
sum  of  §  debt,  and  S  costs  of  suit  duly  taxed,  directed  to  the 
sheriff  of  said  county,  commanding  said  J  C  1ST,  as  such  sheriff,  to 
cause  to  be  levied  of  the  goods  and  chattels  in  his  count}*  of  L  M 
the  sum  of  dollars  and  cents,  which,  by  the  judgment  of  the 
Court  of  Common  Pleas,  within  and  for  the  said  county  of  , 

at  the  term  thereof  A.  D.  18     ,  A  B  recovered  against  L  M, 

with  interest  thereon  from  the         day  of  ,  a.  d.  18     ,  until 

paid  ;  and  also  the  accruing  costs  thereon  ;  and  for  want  of  goods 
and  chattels,  to  cause  the  same  to  be  levied  of  the  lands  and  tene- 
ments in  his  county  of  the  said  L  M.  and  have  that  money  before 
said  Court  of  Common  Pleas,  on  or  before  the         day  of  , 

A.  D.  18  ,  to  render  unto  the  said  A  B  ;  and  have  then  and  there 
this  writ  with  his  doings  under  the  same  duly  indorsed  thereon, 
and  that  said  writ  of  execution  afterward,  to  wit,  on  said  day 
of  ,  A.  D.  18     ,  duly  came  to  the  hands  of  said  J  C  N  for  ex- 

ecution, ami  that  afterward,  to  wit.  on  the         day  of  ,  A.  D. 

18  ,  the  said  J  C  !N,  as  such  sheriff,  returned  in  the  cleric's  office 
of  said  court  said  writ  of  execution  with  the  following  return  in- 
dorsed thereon,  that  is  to  say:  Received  this  writ  this  day  of 
,  A.  d.  18  ,  at  o'clock  A.  M.  (or,  p.  m.)  of  said  day,  and 
thereupon  made  diligent  search  for  goods  and  chattels,  lands  and 
tenements,  of  said  L  M  in  my  county,  and  could  find  neither  goods 
nor  chattel-,  lands  or  tenements,  of  said  L  M  in  my  county  whereon 
to  levy  and  make  said  money;  and  said  plaintiff  avers  thai  said 
return  of  said  .1  C  X.  as  such  sheriff,  is  false  in  this,  to  wit.  that 
said  L  M  had  goods  and  chattels,  lands  and  tenements  (state  if  as 

the  fad   IS,")  which    he.  said   J  C  X.  might   and    could    have   by  due 

diligence  found,  and  made  said  money  out  of,  to  wit,  (here  set  out 
the  goods  as  far  as  you  can,  though  it  may  not  be  absolutely  nea  ssary,") 

which  said  goods  and  chattels,  lands  and  tenements,  were  of  great 
value,  to  wit.  of  the  value  (it's  .  ;ni,|  which  goods  and  chattels, 

lands  and  tenements,  by  Baid  neglect  of  said  .1  C  N",  have  been 
wholly  lost  to  the  said  plaintiff,  whereby  -aid  plaintiff  has  losl  his 
said  debl  and   costs,  and   other  wrongs  and   injury  Buffered;  and 


614  FORMS   OF   PETITIONS. 


thereby  an  action  has  accrued  to  said  plaintiff  on  said  written 
obligation  against  said  defendant  to  recover  his  damages,  to  wit, 
the  sum  of  §  damages,  which  he  has  sustained  by  reason  of  the 
premises. 

Wherefore  he  prays  judgment  against  said  defendant  for  said 
sum  of  $         ,  his  damages  so  as  aforesaid  sustained. 

DBS,  Attorney  for  Plaintiff. 

268.    AGAINST  A  TAVERN-KEEPER  FOR  REFUSING  TO  RECEIVE  A  GUEST. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  before  and  at  the  time  of  the  committing 
the  grievances  hereinafter  mentioned,  was  an  innkeeper,  and  did 
keep  a  certain  common  inn  for  the  reception  and  accommodation 
of  guests  and  travelers,  that  is  to  say,  a  certain  common  inn  called 
the  ,  situate  and  being  at  ,  in  the  county  of  ,  and 

thereupon  and  therefore,  and  in  the  winter  season,  to  wit,  on  the 
day  of  ,  a.  d.  18     ,  the  plaintiff,  then  being  a  traveler, 

came  with,  amongst  other  things  of  great  value,  the  following 
goods  and  chattels,  to  wit,  (here  state  them,)  of  great  value,  to  wit, 
of  the  value  of  $  ,  and  the  plaintiff  was  allowed  to,  and  did 
enter  said  public  inn,  so  kept  by  said  defendant,  with  his  said 
goods  and  chattels,  as  a  guest,  and  the  plaintiff  then  requested  and 
required  the  said  defendant  to  suffer  and  permit  said  plaintiff  to 
stay  and  lodge  at  said  inn  as  such  guest  as  aforesaid,  with  the  said 
goods  and  chattels,  for  and  during  the  space  of  days  ;  and, 

although  the  defendant  then  had  sufficient  room  and  accommoda- 
tion in  his  said  inn  to  enable  him  to  continue  the  plaintiff  therein 
as  a  guest  during  the  time  aforesaid,  and  the  plaintiff  was  then 
ready  and  willing  and  able  to  pay,  and  did  then  and  there  tender 
to  said  defendant  a  reasonable  sum  of  money,  to  wit,  the  sum  of 
8  ,  for  such  entertainment  and  lodging  and  accommodation, 
and  for  such  necessaries  as  should  be  required  by  the  plaintiff 
while  so  a  guest  at  said  inn,  of  which  said  premises  the  defendant 
then  had  notice,  nevertheless  the  said  defendant,  not  regarding 
his  duty  as  such  innkeeper,  but  contriving  and  wrongfully  and 
umjustly  intending  to  injure  the  plaintiff,  and  to  put  him  to  great 
and  unneccessary  trouble  and  expense,  annoyance,  distress,  and 
inconvenience,  and  to  expose  the  plaintiff  so  having  said  goods  and 
chattels  as  aforesaid,  to  great  personal  danger,  and  the  said  goods 
and  chattels  to  great  and  imminent  danger  of  being  damaged, 
injured,  lost,  or  stolen,  did  not,  nor  would  at  the  said  time  he  was 
,so  requested,  or  at  any  time  afterward,  suffer  or  permit  the  plaint- 


FORMS   OP   PETITIONS.  615 


iff  to  stay  or  lodge  at  said  inn  as  aforesaid,  "with  the  said  goods 
and  chattels  of  him,  said  plaintiff,  during  the  time  in  that  behalf 
aforesaid  requested,  hut  wholly  refused  and  neglected  so  to  do,  and 
on  the  contrary  thereof,  at  the  hour  of  of  said  day,  so  heing 

in  the  winter  season,  then  -wrongfully  and  unjustly  turned  said 
plaintiff,  with  his  said  goods  and  chattels,  from  and  out  of  the  said 
inn.  so  kept  by  said  defendant,  whereby  said  plaintiff  was  forced 
to  quit  said  inn  and  compelled  to  seek  entertainment  and  lodging 
elsewhere,  and  to  travel  Avith  his  said  goods  and  chattels  a  great 
distance,  to  wit,  ,  and  to  pay  therefor  a  large  sum  of  money, 

to  wit,  the  sum  of  8  ,  and  to  expose  his  said  goods  and  chat- 
tels to  be  lost  or  stolen ;  the  said  plaintiff  was  thereby,  upon  that 
occasion,  \)y  means  of  the  said  several  premises,  put  to  great 
trouble,  inconvenience,  and  expense,  and  was  and  is  otherwise 
greatly  annoyed,  distressed,  and  injured,  and  said  goods  and  chat- 
tels exposed  to  great  danger  of  being  injured  or  stolen;  to  the  dam- 
age of  the  said  plaintiff  8 

Wherefore  the  plaintiff  demands  judgment  against  said  defend- 
ant for  said  sum  of  S         ,  his  damages  so  as  aforesaid  sustained. 

W  W  13.  Attorney  for  Plaintiff. 

This  form  is  taken  from  the  report  of  the  case  of  Fell  v.  Knight, 
8  M.  &  W.  269.  The  form  will  serve  for  a  mere  refusal  to  receive 
the  guest  by  omitting  all  allusion  to  goods.  The  keeper  of  a  pub- 
lic inn  is  bound  to  receive  and  entertain  all  persons.  All  the  law 
requires  of  him  is  to  find  for  his  guests  reasonable  and  proper 
accommodation;  if  he  does  that,  he  does  all  that  is  requisite.  A 
tender,  say-  Lord  Abinger,  C.  J.,  should  he  averred  of  the  pay. 
On  the  duties  of  innkeepers,  vide  1  Roll.  Abr.  3  F. ;  Bacon  Abr., 
Inns  and  Innkeepers;  White's  case,  Dyer,  158.  Lord  Kenyon,  C. 
J.,  in  Kirkman  v.  Shawcross,  6  Term,  17,  says:  "Innkeepers  are 
bound  by  law  to  receive  guests  who  come  to  their  inns,  and  are 
also  bound  to  protect  the  property  of  their  guests.  Tiny  have  no 
option,  cither  to  receive  or  reject  guests,  and  as  they  can  not  refuse 
seive  guests,  so  neither  can  they  impose  unreasonable  terms 
upon  them."  See  also  Bennett  v.  Miller,  5  Term,  -1 1  ;  Thompson  v. 
Lacy,  :;  B.  &  Aid. 285;  Newton  v. Trigg,  1  Shower, 270;  Eawthorn 
r.  Eammond,  1  C.  &  K.  104;  Broke,  Action  on  Case,  76;  Broke, 
Contracts,  13;  9  Coke,  876.  In  Rex  v.  [vens,  7  C.  &  P.  213,  Cole- 
ridge, .1..  said  :  ••  The  innkeeper  is  not  to  Belecl  his  guests.  He  has 
no  righl  to  Bay  to  one,  '  Sou  Bhall  come  into  my  inn.'  and  another, 
'  You  -hall  not,'  as  every  one  coining  and  conducting  himself  in  a 


GIG  FORMS   OF   PETITIONS. 


proper  manner  has  a  right  to  ho  received."  See  also  Howell  v. 
Jackson,  6  C.  &  P.  723.  "While  travelers  are  entitled  to  proper 
accommodation,  they  have  no  right  to  select  a  particular  apart- 
ment, nor  to  use  it  for  purposes  other  than  those  for  which  it  was 
designed.  Fell  v.  Knight,  S  M.  &  W.  269.  Some  of  the  American 
cases  go  farther,  and  intimate  a  right  to  exclude  persons  of  bad 
habits  or  character.  In  Jcncks  v.  Coleman,  2  Sumner,  221,  as  to 
common  carriers  of  passengers,  Story,  J.,  said:  "That  the  de- 
fendant had  the  right  to  refuse  to  admit  on  board  persons  who 
refuse  to  obey  the  reasonable  regulations  of  the  boat,  or  who  are 
guilty  of  gross  and  vulgar  habits  of  conduct,  Or  who  make  dis- 
turbances on  board,  or  whose  characters  are  doubtful  or  dissolute 
or  suspicious;  and,  a  fortiori,  whose  characters  are  unequivocally 
bad."  The  analogy  between  the  rights  and  duties  of  common 
carriers  and  innkeepers  is  very  close,  so  that  the  decision  above 
has  a  strong  bearing  on  the  rights  of  innkeepers  to  refuse  guests. 
In  Markham  v.  Brown,  8  1ST.  IT.  523,  Parker,  J.,  says :  "  But  he  is 
not  obliged  to  make  his  house  a  common  receptacle  for  all  comers. 
.  .  .  He  is  indictable  if  he  usually  harbor  thieves,  and  he  is 
answerable  for  the  safe-keeping  of  the  goods  of  his  guests,  and  is 
not  bound  to  admit  one  whose  notorious  character  as  a  thief  fur- 
nishes good  reasons  to  suppose  that  he  will  purloin  the  goods  of 
his  guests,  or  his  own.  ...  So  he  may  prohibit  the  entry  of 
one,  whose  misconduct  in  other  particulars,  or  whose  filthy  condi- 
tion, would  subject  his  guests  to  annoyance."  See  Pinkerton  v. 
Woodward,  33  Cal.  557.  I  have  no  doubt  that  innkeepers  have 
the  right  to  exclude  guests  of  a  disreputable  character — such  per- 
sons as  persons  of  good  character  could  not  with  proper  self- 
respect  associate  with. 


FORMS    OF    DEMURRER.  617 


CHAPTER  XIX. 


FORMS  OF  DEMURRER. 

1.    GENERAL    DEMURRER. 

County,  ss.,  Court  of  Common  Pleas. 
A  B,  plaintiff,   \ 

VS.  >  Demurrer. 

C  D,  defendant.  J 

And  now  comes  the  said  defendant,  ,  and  demurs  to  the 

petition  of  the  said  .  plaintiff,  and  states  the  following  cause 

(or,  causes,  if  wore  than  one.)  of  demurrer  thereto,  to  wit : 

1.  That  it  appears  from  said  petition  that  this  court  has  no  ju- 
risdiction of  the  person  of  this  defendant,  (or,  of  the  subject  of 
this  action.) 

2.  That  it  appears  from  said  petition  that  the  said  plaintiff  lias 
no  legal  capacity  to  sue  in  this  action. 

'.'>.  That  it  appears  from  said  petition  that  the  said  plaintiff  has 
anoth(  r  action  pending  against  this  defendant  for  the  same  cause 
of  action. 

4.  That  there  is  a  defect  of  parties  in  this  action  in  this,  to  wit, 
that  it  appears  from  said  petition  that  oi  ought  to  he  made 
a  party  plaintiff  (or,  defendant,)  in  this  cause. 

5.  That  the  said  plaintiff  has.  in  his  said  petition,  improperly 
joined  eauses  of  action  which  can  not  legally  be  joined  in  the  same 
petition. 

•  i.  That  the  sai'l  petition  of  the  said  plaintiff  does  not  state  facts 
Bufficienl  to  constitute  a  cause  of  action  against  this  defendant,  and 

in  favor  of  the  said  plaintiff. 

Wherefore  the  said  defendant,  for  the  cause  (or,  causes,  as  the 
cast  may  /»-.;  aforesaid,  asks  if  the  said  plaintiff  shall  he  permitted 
to  have  oi-  maintain  his  said  action  thereof  against  this  defendant. 

\Y  8.  Attorney  for  said  Defendant. 

-.    BY    A    MARRIED    WOMAN. 

And    DOW  COmee   the  said  .  by  ,  her  next  friend,  de- 

fendant, and  drm H i--.  i  tc.  i  as  in  first  form.) 


618  FORMS   OP   DEMURRER. 

3.    BY   A   MINOR. 

And  now  comes  the  said  ,  by  ,  Lis  guardian  for  the 

suit,  defendant,  and  demurs,  etc.  (as  in  first  for?n.~) 

4.    WHERE   THE    DEMURRER   IS    TO    A   TART   OF   A   PETITION. 

(Begin  as  heretofore,  and  after  the  word  "demurs"  add:)  to  the 
cause  of  action  set  forth  in  the  first  (or  second,  or  third,  or  fourth, 
etc.,)  count  of  the  said  plaintiff's  petition,  and  states  the  following 
cause,  (or,  causes,)  of  demurrer,  to  wit : 

1.  That  the  said  first  count  of  the  said  plaintiff's  petition  does 
not  state  facts  sufficient  to  constitute  any  cause  of  action  in  favor 
of  the  said  plaintiff  against  this  defendant. 

2.  That  it  appears  from  said  first  count  that  there  is  another  ac- 
tion pending  between  the  said  plaintiff  and  this  defendant  for  the 
same  cause  of  action  as  is  set  up  in  said  first  count  (or,  second, 
etc.,)  of  said  petition. 

Wherefore  the  said  defendant  asks  for  the  cause,  (or,  causes,) 
aforesaid,  if  the  said  plaintiff  shall  have  or  maintain  his  cause  of 
action,  so  set  forth  in  the  said  first  (or,  second)  count  of  his  said 
petition  against  this  defendant. 

5.    DEMURRER   TO   ANSWERS. 

And  the  said  A  B,  plaintiff,  now  comes  and  demurs  to  the  second 
plea  of  the  answer  of  the  said  C  D,  defendant,  (or,  to  the  matter 
of  defense  secondly  stated  in  the  answer  of  the  said  C  D,)  because 
the  facts  therein  stated  do  not  constitute  a  defense  to  the  action  of 
the  said  plaintiff,  and  therefore  prays  judgment  as  in  his  said 
petition. 

AB, 

By  ,  his  Attorney. 

For  forms  of  demurrers  to  answer,  setting  up  matter  in  defense, 
see  pages         and  under  head  of  "Beply." 


FORMS    OF    ANSWERS.  619 


CHAPTER    XX. 


FOEMS     OF     AXSWEKS. 

The  old  rule  of  pleading  was  peremptory,  that  a  plea  must  point 
out  distinctly  the  matter  or  count  to  "which  it  was  intended  to  he 
applied ;  that  it  must  cover  all  it  undertook  to  answer,  and  that  it 
must  contain  a  sufficient  bar  in  law  to  all  it  assumes  to  answer. 
Gould  PL  358.  Thus,  if,  in  trespass  for  assault,  battery,  and  may- 
hem, the  defendant  pleads  to  the  whole  matter  what  in  law  is  a 
justification  of  the  assault  and  battery  only,  the  plea  is  ill  in  toto, 
and  the  plaintiff  is  entitled  to  damages  as  well  for  the  assault  and 
battery  as  for  the  mayhem ;  for  an  entire  plea,  going  to  the  whole 
declaration,  is  indivisible  in  its  effect,  and  can  not  operate  as  a  bar 
to  any  part  of  the  cause  of  action,  unless  it  constitutes  in  law  a  bar 
to  the  whole.  The  defendant  may  justify  a  part,  as  the  assault  and 
battery,  and  plead  not  guilty  of  the  mayhem.     Gould  PI.  359. 

The  same  doctrine  is  necessarily  maintained  under  the  code. 
"Defenses  and  counter-claims."  says  Hand,  J.,  in  Kneedler  v. 
Sternbergh,  10  Pr.  G8,  "  must  refer  to  the  causes  of  action  which 
they  are  intended  to  answer,  in  such  manner  that  the}'  may  be  in- 
telligibly distinguished.  A  designation  of  identity  resting  on  mere 
probabilities  or  mere  presumption,  is  too  vague  and  equivocal  to 
be  good  pleading;  and  a  plea  should  answer  the  whole  declaration 
or  count  to  which  it  is  pleaded.  Eoot  v.  Woodruff,  6  Hill,  418;  1 
Saund.  28,  a,  note  3.  And  it  is  bad  for  uncertainty,  if  it  does  not 
appear  what  part  of  the  complaint  it  is  intended  to  answer."  So 
where  in  an  action  for  Libel,  the  charge  was  the  scoundrel  was 
indicted  for  fraud,  and  the  justification  set  up  that  the  defendant 
was  indicted  for  fraud,  it  was  held  had,  as  not  meeting  the  cl  . 
of  scoundrel.  The  libel  designates  the  plaintiff  as  such  a  person, 
and  it  i.->  no  justification  to  say  he  has  been  indicted  and  arrested 
for  a  conspiracy  to  cheat  and  defraud.  Loveland  v.  Eosmer,  8  Pr. 
215.  So  an  answer,  commencing  as  an  answer  to  the  whole  com- 
plaint, and  assuming  to  answer  the  whole,  hut  containing  facts 
which  only  constitute  a  defense  to  a  pari  of  the  complaint,  is  had 
on  demurrer.    Tomlinson  < .  Van  Vachten,  <i  Pr.  199.    An  answer 


620  FORMS   OF   ANSWERS. 


should  cover  all  it  professes  to  cover,  and  no  more.     Willis  v.  Tag- 
gard,  6  Pr.  433. 

It  will  thus  be  seen  that  the  same  care  is  now  necessary  in  pre- 
paring an  answer  as  formerly  in  drawing  a  plea.  The  whole  cause 
of  action  must  be  met,  and  it  must  he  met  with  what  is  a  defense; 
it  must  he  met  as  a  whole  hy  a  single  bar;  as  it  may  be  met  in 
part  with  one  fact,  in  part  hy  another,  and  by  a  denial  as  to  another 
part.  In  this  way  the  whole  cause  of  action  may  be  met.  To  an 
assault  and  wounding,  the  defendant  may  justify  the  assault,  and 
plead  not  guilty  as  to  the  wounding.  The  pleader  will,  therefore, 
be  cautious  to  see  that  his  answer  denies,  avoids,  or  admits  the 
whole  cause  of  action.  The  forms  of  answers  given  are,  of  course, 
given  as  answering  the  whole  petition.  When  they  are  to  be  in- 
terposed to  a  particular  count,  where  there  is  more  than  one,  the 
answer  must  so  state  Instead  of  proceeding  after  the  word  "be- 
cause," as  in  the  forms,  the  words  "  as  to  the  second  (or  other) 
count  of  the  petition,"  or,  "as  to  the  cause  of  action  firstly  (or, 
secondly,  etc.,)  stated  in  the  petition,"  should  be  insei^ted.  And 
when  a  single  cause  of  action  is  to  be  met  by  various  answers,  the 
part  to  which  each  answer  is  to  be  applied  must  be  specified.  Let 
us  illustrate  it  by  the  case  of  Loveland  v.  Hosmer,  supra.  The 
charge  there  was  twofold :  first,  a  scoundrel ;  second,  indicted  for 
a  fraud.  The  answer  should  have  said  that,  as  to  so  much  of  the 
libel  as  charges  the  plaintiff  with  having  been  indicted,  he  avers 
that  he  was  so  indicted  ;  and,  as  to  so  much  as  relates  to  the  scoun- 
drel, he  pleads  not  guilty,  or  he  admits  it,  or  he  justifies  it  sepa- 
rately.    Such  an  answer  would  have  met  the  whole  case. 

The  former  rules  of  pleading  in  this  respect,  as  well  as  in  so 
many  others,  are  therefore  in  full  force,  and  a  knowledge  of  them 
is  just  as  important  now  as  ever.  JSTo  lawyer  can  understand  the 
code  until  he  has  mastered  Gould  and  Chitty.  The  code  implies 
the  existence  of  a  methodical  and  logical  system  of  pleading,  and 
only  undertakes  to  abolish  its  mere  technical  forms,  while  it  leaves 
in  full  play  its  principles  and  its  logic,  Hence  these  principles  and 
this  system  of  logic  must  be  mastered  before  one  can  aspire  to  the 
dignity  of  a  pleader,  even  under  the  code. 

The  forms  which  are  here  given,  as  to  general  and  special  de- 
nials, are  designed  to  lead  the  parties  to  a  single  and  definite  issue. 
In  actions  for  torts,  it  is  almost  impossible  to  frame  special  denials 
which  will  not  in  fact  amount  to  the  old  plea  of  not  guilty  The 
special  issues  given  are  mere  hints  for  the  pleader — mere  sugges- 
tions to  aid  him  in  the  mode  and  manner  of  framing  such  denials. 


FORMS   OP    ANSWERS.  G21 

It  is  important  to  adopt  a  form  as  brief  as  possible.  It  must  bit 
the  real  fact  in  controversy,  stripped  of  all  immaterial  accidents. 
A  jury  best  comprehends  such  an  issue,  and  will  pass  upon  it  much 
more  understandingly  than  upon  one  whieh  denies  all  the  details, 
as  well  as  the  main  and  material  fact. 

There  is  another  matter  which  maybe  here  referred  to,  and  that 
is.  the  practice  of  making  admissions  in  an  answer.  There  is  a  speci- 
men of  this  fault  in  the  case  of  Pendleton  Street  Eailroad  Co.  v. 
Shires,  18  Ohio  St.  255,  259,  in  which  case  an  answer  was  filed  oc- 
cupying a  page  and  a  half  of  the  report,  made  up  of  mere  admis- 
sions and  explanations;  whereas  all  the  case  called  for  was  a 
simple  denial  that  the  defendant  was  guilt3T  of  the  negligence 
alleged  against  it.  There  is  nothing  in  the  old  form  of  pleading 
at  law,  nor  in  the  code,  which  justifies  such  a  practice.  The  code, 
even  in  a  case  in  equity,  has  abolished  discovery,  and  hence,  in 
that  class  of  cases,  the  answer  is  restricted  to  a  simple  pleading. 
The  code  declares  that  what  is  not  denied  is  for  the  purpose-  of 
that  case  admitted  ;  but  it  is  only  admitted  for  that  limited  pur- 
pose: it  is  no  estoppel  in  another  case  ;  whereas  these  admissions 
under  oath  made  in  an  answer,  would  be  evidence  against  the  party 
in  another  case,  like  any  other  admission  of  a  fact.  There  is 
danger,  then,  in  inserting  these  unnecessary  admissions.  They 
ought  to  be  stricken  out  as  irrelevant  and  improper  matter  inserted 
in  the  answer.  As  I  have  already  said,  an  answer  by  the  code 
must  be  "ne  or  all  of  these  four  matters :  1.  A  denial  of  the  whole 
or  some  part  of  the  petition  ;  2.  New  matter  constituting  a  defense 
to  the  case  made  in  the  petition;  3.  A  counter-claim;  4.  A  set-off. 
There  is  here  no  ground  for  admissions,  or  explanations,  at  Least,  in 
an  action  at  law.  So,  too,  in  an  action  in  equity,  a  denial  meets 
the  cae  >,  if  the  facts  are  not  correctly  stated.  The  defendant,  even 
in  thai  case,  can  find  no  authority  in  the  code,  as  in  the  old  prac- 
tice, for  denying  the  matter  as  stated  and  then  going  on  to  state 
th«-  case  a-  the  defendant  understands  it.  That  was  accessary 
under  the  old  practice,  because  discovery  was  sought;  hence,  the 
pleader  in  equity  was  compelled  firsl  to  state  his  pleading,  and 
then  to  take  the  witness-stand  and  state  what  he  knew  of  the  mat- 
ter in  contention.  This  last  is  abolished  substantially  by  the 
code. 

Til-'  answer  in  the  case  I  speak  of  denies  matters  not  contained 
in  the  petition  ;  it  deni<  -  it  made  the  excavation  across  the  street  : 
the  petition  do,  a  not  so  aver  ;  it  says  the  excavation  was  mail-'  by 
the  water-WOrkfl  trustees.     Is  this  new  matter  inserted   by  way  of 


622  FORMS   OP   ANSWERS. 


defense  or  what?  The  gist  of  the  action  was  negligence  in  hand- 
ling the  horses,  whereby  they  ran  away  and  against  the  plaintiff. 
That  was  the  fact  to  be  denied  and  the  fact  the  plaintiff  had  to 
prove.  Hence,  an  answer  denying  the  negligence  charged  was  a 
denial  of  all  that  was  material  in  the  petition,  and  all  that  was 
necessary  to  deny.  All  else  was  true ;  the  running  of  the  railroad 
and  the  excavation  across  the  street  were  the  only  other  facts  in 
the  case. 

I  notice  this  case  as  a  good  illustration  of  what  is  an  abuse  in 
pleading,  conducing  largely  to  the  increase  of  the  record,  to  the 
confusion  of  the  jury  and  to  the  increase  of  the  expense  of  litiga- 
tion. It  is  an  abuse  pretty  general  in  practice,  and  originates  in 
indolence,  in  the  pleader  not  wishing  to  submit  to  the  mental 
effort  requisite  to  ascertain  what  is  material  and  what  is  not; 
hence  the  pleader  stuffs  his  own  argument  in  the  view  he  takes 
of  the  case  into  the  record,  where  it  is  an  unlawful  intruder. 

The  code  is  not  to  be  blamed  for  this ;  it  is  the  loose  practice 
that  has  grown  up  in  spite  of  the  code,  and  has  been  tolerated  by 
the  court.  It  should  cease,  and  the  code  have  a  fair  chance  of  be- 
ing used  by  lawyers  in  a  lawyer-like  manner;  and  then  there  will 
be  a  chance  for  it  to  become  a  symmetrical  system  for  attaining 
the  ends  of  justice. 

Some  have  objected  to  the  use  of  the  words  "  in  manner  and 
form  as  the  said  plaintiff  hath  declared  against  him."  These 
words  were  in  the  old  forms,  and  were  inserted  to  make  the  plea 
more  specific  and  definite  in  its  application  to  the  cause  of  action 
set  forth  in  the  declaration.  In  this  form,  the  old  general  issue 
was  a  specific  denial  of  the  particular  cause  of  action  declared  on. 
One  judge  held,  I  am  told,  that  such  a  denial  was  bad,  because  he 
might  be  indebted  or  have  promised  in  some  other  form.  It  has 
usually  been  deemed  sufficient  to  deny  the  specific  charge  alleged 
in  the  petition;  the  plaintiff  must  recover  on  that  specific  cause  of 
action,  or  not  recover  at  all.  It  would  seem,  therefore,  that  a  de- 
nial of  that  cause  of  action  as  stated  in  the  petition,  ought  to  be 
a  sufficient  denial ;  nay,  all  the  denial  that  the  petition  admitted  of. 

rl  he  forms  of  answers  naturally  divide  themselves  into  two  great 
classes : 

1.  Denials. 

2.  The  statement  of  new  matters. 


FORMS    OF    ANSWERS.  G23 


DENIALS. 

This  class  again  also  divides  itself  into  two  classes — general  and 
special. 

I.  General  Denials. 

TVe  will  arrange  these  under  the  heads  of  contract  and  tort.  And 
contracts  again  must  be  divided  into  actions  to  recover  on  the  com- 
mon counts,  and  special  contracts ;  and  these  again  into  contracts 
not  under  seal,  and  contracts  under  seal. 

1.    ANSWER   TO    COMMON   COUNTS. 

County,  ss.,  Court  of  Common  Pleas. 
A  B,  plaintiff, 

r5>  l     Answer. 


C  D,  defendant. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  agaiust  him,  the  said  defendant,  because 
lif  saith  that  he,  the  said  defendant,  does  not  owe  the  said  plaintiff 
the  said  sum  of  8  ,  in  manner  and  form  as  the  said  plaintiff 
hath,  in  his  said  petition  declared,  nor  any  part  thereof;  and  of 
this  he  puts  himself  upon  the  country. 

CD, 

By  E  F,  his  Attorney. 

This  form  was  inserted  in  the  first  edition,  and  has,  in  New 
York,  been  held  sufficient  in  a  certain  class  of  cases ;  in  those  cases 
where  the  petition  avers  a  certain  sum  due  as  the  balance  of  an 
account.  In  Simmons  v.  Sisson,  2G  N.  Y.  2G4,  the  petition  alleged 
in  substance  that  the  intestate  in  his  lifetime,  while  acting  as 
treasurer  of  the  plank-road  company,  advanced  and  laid  out  in 
keeping  the  road  in  repair  a  large  sum  of  money,  amounting  to 
about  $800  over  and  above  the  amount  received  by  him  for  tolls, 
etc.,  and  that  there  was  due  8744.74,  on  account  of  said  advances. 
The  defendant  answered,  saying  that  the  said  company  was  not 
indebted  to  said  intestate  in  said  sum  of  $744.74,  or  in  any  other 
Bum  whatever  for  money  expended  in  repairing  the  road,  or  in  any 
other  manner.  Selden, .).:  "The  first  defense  is  the  exact  equiva- 
lent of  nil  debet  al  common  law.  It  may  admit  of  some  doubt 
whether  nil  '/>/><■*  was  a  proper  answer  to  the  complaint.  The  facta 
stated  in  the  complaint  are  peculiar,  and  do  not  vary  materially 
from  an  indebitatus  COnnt  in  debt,  according  to  the  ancient  forms 


624  FORMS   OF   ANSWERS. 


of  pleading.      The  statement  of  the  advances  to  the  amount  of 
;il>, >ut  $800,  beyond  tolls  and  earnings,  is  not  put  forth  as  the  cause 
of  action,  but  only  as  inducement ;  the  cause  of  action  being  that 
at  the  time  of  the  death  of  the  intestate,  there  remained  due  to  him 
a  balance  of  advances  over  and  above  tolls  and  earnings,  the  sum 
of  8741.71,  and  for  this  sum  judgment  is  demanded."     To  such  a 
complaint,  I  think  the  ancient  plea  of  nil  debet  is  a  good  answer 
under  the  code.     In  Gates  v.  Wheeler,  2  Hill,  233,  Bronson,  J., 
says :  "  In  debt  for  rent  by  indenture,  or  for  an  escape,  or  for  a 
devastavit  by  executor,  it  has  been  held  that  the  indenture,  or  the 
judgment,  is  but  inducement;  and  that  the  arrears  of  rent,  the 
escape,  and  devastavit  are  the  foundation  of  the  action ;  in  these  cases 
n  il  debet  is  a  good  plea."    Pullis  v.  G-iddings,  8  Johns.  82 ;  Dartmouth 
College  v.  Claugh,  8  N.  II.  28.    In  the  case  of  Quin,  Adm'r,  v.  Lloyd, 
41  N.  Y.  349,   where  the  count  alleged  services  without  stating 
amount  or  time  of  service,  but  saying  that  there  was  a  balance 
due  therefor  of  $333.07,  as  services  in  Europe,  and  in  $206.31,  for 
services  in  New  York,  it  was  held  that  on  an  answer  of  a  general 
denial,  proof  of  payments  might  be  received.   These  cases,  especially 
the  first,  show  that  an  answer  of  nil  debet  can  not  be  objected  to  on 
the  trial.     If  allowed  to  stand,  it  amounts  to  a  general  denial,  and 
puts  plaintiff  on  proof  of  all  the  allegations  of  his  petition.     S.  P., 
Morley  v.  Smith,  4  Kan.  183.     Under  the  new  rules  of  pleading  in 
England,  the  plea  to  the  common  counts  is  that  the  defendant  was 
never  indebted  to  the  said  plaintiff  in  said  sum  so  demanded,  nor 
in  any  part  thereof,  in  manner  and  form  as  the  plaintiff  hath  in 
in  his  declaration  alleged.      17  C.  B.,  N.  S.  708;  101  Eng.  C.  L. 
299;  Johnson  v.  Gibson,  16  Eng.  L.  &  Eq.  282;  Clothier  v.  Gann, 
16  lb.  460.     This  plea  puts  in  issue  simply  the  existence  of  the 
original  indebtedness,  and  does  not,  as  in  nil  debet,  put  in  issue  the 
existence  of  an  indebtedness  at  the  commencement  of  the  action. 
Hence,  all  payments  made  on  this  original  debt  must  be  set  up  by 
answer,  and  can  not  be  proved  under  this  plea  of  never  indebted. 
This  form  of  the  plea  is  probably  the  true  form  on  an  answer  to  an 
action  on  the  common  counts.      And  yet  the  case  in  New  York 
maybe  good  law,  and  applicable  to  a  case  which  sets  out  indebted- 
ness, claiming  a  balance  to  be  due  on  it ;  on  that  averment  met 
with  a  nil  debet  arises  an  issue  on  what  is  the  balance  really  due  on 
the  matters  involved  in  the  petition.      But  when  the  count  is  in 
the  common  form,  the  true  answer  is  that  the  defendant  was  never 
indebted  ;  or,  admitting  a  sum  once  due,  and  payment  to  that  part 
and  never  indebted  as  to  balance.      I  add  a  form  under  this  view 


FORMS   OP   ANSWERS.  625 


of  the  law,  similar  to  the  English  form,  which  will  meet  all  objec- 
tions to  a  plea  of  nil  debet 

2.    NEVER   INDEBTED,  TO    COMMON    COUNT. 

And  now  comes  the  said  defendant,  and  says  that  plaintiff  ought 
not  to  have  and  maintain  his  aforesaid  action  thereof  against  him, 
because  he  saith  that  he  never  was  indebted  to  the  said  plaintiff  In 
said  sum  of  £  ,  nor  in  any  part  thereof,  in  manner  and  form  as 
said  plaintiff  hath  in  said  petition  alleged  against  him,  and  of  this 
he  puts  himself  upon  the  country. 

B  F,  Attorney  for  Defendant. 

3.    DENIAL    OF   PART   AND   ADMISSION    OP   PART. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he,  the  said  defend- 
ant, admits  that  he  does  owe  the  said  plaintiff  the  sum  of  $ 
parcel  of  the  said  sum  of  $  ,  so  by  the  said  plaintiff,  in  his 
said  petition  above,  demanded;  and  he,  the  said  defendant,  con- 
sents that  said  plaintiff  may  have  judgment  in  his,  said  plaintiff 's, 
favor,  and  against  the  said  defendant,  for  the  said  sum  of  $  , 

so  admitted  to  be  due  ;  and  the  said  defendant  further  saith  that, 
as  to  all  the  rest  and  residue  of  said  sum  of  $  ,  so  demanded, 

the  said  plaintiff  ought  not  to  have  his  said  action  thereof  against 
him,  the  said  defendant,  because  he  saith  that  he  does  not  owe  the 
said  plaintiff  the  rest  and  residue  of  said  sum  of  $  ,  or  any 

part  thereof;  and  of  this  he  puts  himself  upon  the  country. 

CD, 

By  E  F,  his  Attorney. 

Note.— See  Houghton  v.  Townsend,  8  Pr.  441. 

These  forms  will  answer  to  all  petitions  on  the  common  counts, 
claiming  a  sum  of  money  for  goods  sold,  money  paid,  money  had 
and  received,  work  and  labor  performed,  and  on  an  account  stated. 
The  effect  will  be  to  deny  the  claim  of  the  plaintiff,  and  nothing 
will  be  put  in  issue  but  the  truth  of  the  claim  set  up  by  the  plaint- 
iff. Every  defense  which  admits  the  existence  of  the  plaintiff's 
claim  at  one  time,  must  be  specially  set  up  in  the  answer. 

4.    TO    PROMISSORY    NOTES,    BILLS   OF    EXCHANGE,    ETC. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  tho 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
vol.  I — 10 


626  FORMS    OP    ANSWERS. 


not  to  have  his  aforesaid  action  thereof  against  him,  the  said  de- 
fendant,  because  he  saith  that  lie,  the  said  defendant,  did  not 
undertake  and  promise,  in  manner  and  form  as  the  said  plaintiff 
hath,  in  his  said  petition,  alleged  against  him;  and  of  this  he  puts 
himself  upon  the  country. 

It  would  seem  that  this  should  be  held  a  sufficient  general  denial. 
It  denies  the  promise  made,  as  it  is  set  forth  in  the  petition,  and 
the  plaintiff  must  prove  the  making  and  giving  of  the  note,  and  a 
note  of  the  tenor  and  effect  of  the  one  set  up  in  the  petition. 

5.    ANOTHER    FORM. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  aforesaid  action  thereof  against  this  defendant,  be- 
cause he  saith  that  he,  the  said  defendant,  did  not  make  and  deliver 
to  the  said  plaintiff  the  said  promissory  note  (or,  bill  of  exchange, 
etc.,)  in  said  petition  set  forth,  in  manner  and  form  as  is  therein 
alleged  ;  and  of  this  he  puts  himself  upon  the  country. 

6.    TO    CONTRACT    UNDER    SEAL. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  thereof  against  him,  because  he 
saith  that  the  said  writing  obligatory,  in  the  said  petition  men- 
tioned, is  not  the  act  and  deed  of  the  said  defendant :  and  of  this 
he  puts  himself  upon  the  country. 

CD, 

By  ,  his  Attorney. 

It  will  be  well  enough  to  adopt  this  old  form,  when  an  issue  is 
to  be  raised  on  the  execution  of  a  deed.  The  extent  of  this  issue 
is  well  settled,  and  then  can,  therefore,  be  no  uncertainty  as  to  what 
it  puts  in  issue ;  whereas  any  other  form  might  lead  to  confusion. 
The  question  raised  by  this  plea  is  simply  the  execution  of  the 
deed  ;  and  any  fact  which  goes  to  show  that  the  defendant  did  not 
execute  it,  so  as  to  render  it  his  deed,  can  be  given  in  evidence — as 
that  it  was  different  from  what  it  was  represented  :  so  also  that  it 
has  been  altered  in  a  material  part :  for  if  so,  then  it  is  not  the 
deed  that  the  party  executed. 


FORMS  OF  ANSWERS.  C27 


7.  IN  TORT. 

And  the  said  C  D,  defendant,  now  conies,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  aforesaid  action  thereof  against  the  defend- 
ant, because  he  saith  that  he,  the  said  defendant,  is  not  guilty  of 
the  said  several  supposed  grievances,  so  in  said  petition  laid  to  his 
charge,  or  any  part  thereof,  in  manner  and  form  as  the  same  are 
therein  set  forth  and  alleged ;  and  of  this  he  puts  himself  upon 
the  country. 

This  general  form  will  answer  in  all  cases  where  formerly  an 
action  of  trespass,  trover,  or  case  would  lie,  and  will  put  in  issue 
all  the  material  averments  of  the  plaintiffs  petition.  This  form 
must  be  adopted,  or  the  plea  of  denial  must  be  just  the  transcript 
of  the  petition,  with  a  negative  inserted  before  each  material  alle- 
gation, which  would  be  unnecessary  prolixity,  and  would  lead  to 
multiplied  questions  as  to  whether  all  that  was  material  had  been 
traversed.     This  form  is  sanctioned  by  Salinger  v.  Lusk,  7  Pr.  430. 

8.    DENIAL    OF    NEGLIGENCE. 

And  now  comes  the  said  defendant,  and  says  that  said  plaintiff 
ought  not  to  have  and  maintain  his  aforesaid  action  thereof  against 
him,  because  he  saith  that  he  denies  that  he  is  guilty  of  the 
carelessness,  negligence,  and  improper  conduct,  or  either  of  them, 
in  manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition 
alleged  against  him;  and  of  this  he  puts  himself  upon  the  country. 

"W  B  L,  Attorney  for  Defendant. 

This  form  will  be  proper  in  all  that  numerous  class  of  cases, 
where  the  plaintiff  alleges  the  negligence  of  the  defendant  as  the 
ground  of  action.  In  these  cases,  there  are  usually  averments  by 
way  of  inducement,  as  to  the  truth  of  which  there  is  no  dispute; 
the  contention  being  whether  the  plaintiff  received  his  injnry  in 
consequence  of  some  negligence  or  default  on  the  part  of  the  de- 
fendant. These  actions  are  becoming  very  numerous,  and  it  will 
be  convenient  to  have  some  general  and  brief  denial  which  will 
meet  all,  or  nearly  all  of  the  cases.  Of  this  character,  are  actions 
for  injuries  received  on  railroads;  by  being  run  over;  by  careless 
driving  of  horses;  by  falling  into  holes  carelessly  left  open ;  and 
by  the  various  other  circumstances  under  which  the  injurymay 
have  been  sustained  by  the  negligence  of  another.    The  practice 


628  FORMS   OF   ANSWERS. 


now  is  in  many  cases,  as  I  have  before  stated,  to  draw  a  long  an- 
swer, filled  with  admissions,  qualifications,  reservations,  and  de- 
nials, all  mixed  up  together,  when  the  onty  material  averment  is 
the  negligence,  carelessness,  and  improper  conduct  of  the  defend- 
ants. If,  as  in  railroad  cases,  the  negligence  is  that  of  the  agent  or 
servant,  it  is  still  the  act  of  the  master,  or  principal,  and  should 
he  so  plead.  The  jury  are  never  mislead,  when  the  issue  is  nar- 
rowed down  to  a  simple  point ;  but  are  very  liable  to  be,  when  the 
answer  is  drawn  out  to  a  great  length,  and  filled  up  with  imme- 
terial  matters. 

9.    A   VERY    GENERAL    DENIAL,  APPLICABLE    TO    ALL    CASES. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  aforesaid  action  thereof  against  this  defend- 
ant, because  he  saith  that  he  denies,  all  and  singular,  the  allega- 
tions averred  by  the  said  plaintiff  in  his  said  petition,  in  manner 
and  form  as  the  same  are  therein  stated ;  and  of  this  he  puts  him- 
self upon  the  country. 

This  form  of  a  general  denial  seems  to  have  been  held  sufficient 
by  the  Supreme  Court  of  New  York,  in  Dennison  v.  Dennison, 
9  Pr.  246.  It  may  be  applied  to  all  cases,  whether  in  contract  or 
tort,  in  law  or  equity.  And,  unless  constant  disputes  are  to  be 
met  with  in  every  case,  it  is  absolutely  necessary  to  have  some 
such  general  form,  the  meaning  and  scope  of  which  shall  become 
fixed  and  settled,  known  and  recognized,  so  that  every  one  may 
know  that  in  using  it,  there  can  be  no  misunderstanding.  Then 
parties  will  know  exactly  what  is  in  issue ;  what  is  to  be  proved  on 
the  one  side,  and  what  disproved  on  the  other.  Whereas,  if  every 
one  is  to  be  left  to  frame  what  he  may  call  his  general  denial,  there 
will  be  constant  disputes  as  to  what  is  or  is  not  covered  by  the  an- 
swer ;  and  the  court  will  be  constantly  disagreeing  with  the 
pleader  as  to  the  extent  and  meaning  of  his  answer,  and  he  and 
his  client  will  be  subjected  to  constant  vexation  and  expense  in 
groping  their  way  to  what  is  the  material  issue  in  a  case. 

It  matters  not  so  much  what  the  form  is,  so  there  is  one  to 
which  all  can  apply,  with  the  certainty  of  doing  just  what  they 
intend  to  do,  and  nothing  else.  Though  this  may  not  be  the 
essence  of  justice,  it  is  opening  and  grading  a  well-beaten  path 
leading  to  its  attainment.  The  means  are  almost  as  important  as 
the  end.     Without  public  highways,  one  may  attain  the  end  of  a 


FORMS    OF   ANSWERS.  629 


journey,  but  it  will  be  after  mucb  delay,  and  uncertainty,  and 
vexation,  and  great  expense;  so  one  may  attain  justice  without 
forms,  but  it  must  also  be  after  much  delay,  and  uncertainty,  and 
vexation,  and  great  expense.  The  case  of  Lewis  v.  Coulter  de- 
cides that  a  general  denial  should  be  of  each  and  all,  etc.  The 
word  material  should  not  be  attached  to  the  allegation.  10  Ohio 
St.  451. 

II.  Special  Denials. 

10.     DENYING   A    NOTE,    BILL,  OR    CONTRACT. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
said  petition  of  the  said  A  B,  plaintiff,  saith  that  he  did  not  make 
and  deliver  the  said  promissory  note,  (bill  of  exchange,  check,  or 
contract,  as  the  case  is,)  in  the  said  petition  of  the  said  plaintiff  set 
forth  and  described  ;  and  of  this  he  puts  himself  upon  the  country. 

CD, 

By  E  F,  his  Attorney. 

11.    IN   ACTIONS   ON   NOTES,    BILLS,   ETC. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  says  that — 

1.  The  said  did  not  indorse  and  deliver  the  said  promis- 
sory note,  (bill  of  exchange,  check,  or  other  negotiable  contract,)  to 
the  said  ,  as  the  said  plaintiff  hath  in  his  said  petition  al- 
leged. 

2.  The  said  promissory  note,  (or,  bill  of  exchange,  check,  etc.,)  in 
the  said  petition  described  was  not,  when  the  same  became  due  and 
payable,  presented  to  the  said  ,  for  payment,  and  payment 
thereof  by  the  said  refused,  as  the  said  plaintiff  has  in  his 
said  petition  alleged. 

3.  He,  the  said  defendant,  did  not  have  due  and  legal  notice  of 
the  said  demand  and  non-payment  of  the  said  promissory  note, 
(hill  of  exchange,  etc.,)  as  the  said  plaintiff  hath  in  his  said  peti- 
i  ion  alleged. 

4.  The  said  did  aol  accepl  the  said  bill  of  exchange  in  the 
said  plaintiff's  petition  described,  in  manner  and  form  as  is  therein 
alleged. 

5.  The  said  bill  of  exchange,  in  said  plaintiff's  petition  described, 
was  not  duly  presented  to  the  said  for  acceptance,  and  the 
acceptance  thereof  refused,  as  the  said  plaintiff  hath  in  his  said 
petition  alleged. 


t>30  FORMS   OF    ANSWERS. 


6.  The  said  defendant  had  not  duo  and  legal  notice  that  the  said 
bill  of  exchange,  (or,  check,  etc.,)  in  the  said  plaintiff's  petition 
described,  was  presented  to  the  said  for  acceptance,  and  that 
the  said  ,  on  such  presentation,  refused  to  accept  the  same, 
as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

7.  Due  and  diligent  search  was  not  made  when  the  said  bill  of 
exchange,  (or,  promissory  note,  etc.,)  became  due  and  payable,  to 
discover  the  residence  and  person  of  the  said  ,  at  ,  or 
elsewhere,  in  order  that  the  said  bill  of  exchange,  in  said  peti- 
tion described,  might  be  presented  to  the  said  for  payment, 
in  manner  and  form  as  the  said  plaintiff  has  in  his  said  petition 
alleged. 

And  of  this  the  said  defendant  puts  himself  upon  the  country. 

12.    INDORSEE   V.    MAKER. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
said  petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  the  said  action  against  him,  because  he  saith 
that  the  said  (payee,)  did  not  indorse  and  deliver  the  said 

jironiissory  note,  (or,  bill,  etc.,)  to  the  said  plaintiff,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  alleged ;  and  of 
this  he  puts  himself  upon  the  country. 

13.    INDORSEE    V.    INDORSER. 

(Proceed  as  in  the  last  to  the  blank,  then  proceed:)  defendant  did 
not  indorse  the  said  promissory  note,  in  said  plaintiff's  petition 
mentioned,  in  manner  and  form  as  the  said  plaintiff  hath  therein 
alleged,  and  of  this  he  puts  himself  upon  the  country. 

14.    PAYEE   V.    DRAWER. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him,  because  he  saith  that  he, 
the  said  defendant,  did  not  draw  and  deliver  to  the  said  plaintiff 
the  said  bill  of  exchange,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  declared  against  him  ;  and  of  this  he  puts 
himself  upon  the  country. 

15.    INDORSEE   V.    DRAWER. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him,  because  he  saith  that  he, 


FORMS   OF   ANSWERS.  631 


the  said  defendant,  did  not  draw  and  deliver  to  the  said  ,  (the 

payee,)  the  said  bill  of  exchange  in  said  petition  described  and  set 
forth  ; 

Or,  that  the  said  ,  (payee,)  did  not  indorse  and  deliver  the 

said  bill  of  exchange  to  the  said  plaintiff; 

Or,  that  the  said  ,  (the  payee,)  did  not  indorse  said  bill  of 

exchange  to  the  said  ,  (first  indorsee;) 

Or,  that  the  said  ,  (first  indorsee,)  did  not  indorse  the  said 

bill  of  exchange  to  the  said  ,  (second  indorsee;) 

Or,  that  the  said  ,  (second  indorsee,)  did  not  indorse  said  bill 

of  exchange  to  the  said  plaintiff,  as  is  set  forth  in  said  petition  ; 

Or,  that  the  said  ,  (plaintiff,)  did  not  cause  said  bill  of  ex- 

change, when  the  same  fell  due,  to  be  duly  presented  to  the  said 
,  (drawee,)  and  payment  thereof  demanded,  according  to  the 
tenor  and  effect  of  said  bill  of  exchange ; 

Or,  that  the  said  ,  defendant,  was  not  duly  and  legally 

notified  that  said  bill  of  exchange  had  been  duly  presented  to  the 
said  ,  (drawee,)  and  payment  thereof  refused. 

16.   INSURANCE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him.  because  he  saith  that — 

1.  The  said  defendant  did  not  make  and  deliver  the  said  policy 
of  insurance,  as  the  said  plaintiff  hath  in  his  said  petition  alleged; 
and  of  this  he  puts  himself  upon  the  country. 

2.  The  said  plaintiff  did  not  own  the  said  goods  and  chattels, 
(or,  the  said  dwelling-house  and  furniture,)  at  the  time  of  the  hap- 
pening of  said  loss,  as  in  the  said  petition  alleged ;  and  of  this  the 
said  defendant  puts  himself  upon  the  country. 

3.  The  said  defendant  did  not,  within  the  time  limited  in  the 
schedule  attached  to  the  said  policy,  make  out  or  deliver,  within  a 
reasonable  time  after  the  said  loss,  a  particular  account  of  such  loss 
and  damage,  signed  by  the  hand  of  the  said  plaintiff,  and  verified 
by  his  oath  or  affirmation ;  but  to  make  out  and  deliver  the  same 
did  neglect,  for  the  space  of  months  after  said  loss;  and  of 
this  the  said  defendant  puts  himself  upon  the  country. 

4.  The  said  defendanl  did  not  procure,  nor  has  he  procured,  the 
certificate,  under  the  hand  of  a  magistrate,  or  notary  public,  as  is, 
by  the  schedule  attached  to  the  said  policy,  required  of  the  said 
plaintiff;  bul  to  procure  the  same  the  said  plaintiff  hath  wholly 


032  FORMS    OF    ANSWERS. 


neglected;  and  of  this  the  said  defendant  puts  himself  upon  the 
country. 

17.   AWARDS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  him;  because  he  saith 
that— 

1.  The  said  defendant  did  not  assume  and  promise,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  alleged;  and  of 
this  he  puts  himself  upon  the  country. 

Note. — This  meets  the  promise  of  submission  in  the  case  of  a 
parol  submission.     It  puts  that  in  issue  and  nothing  else. 

2.  The  said  did  not  make  and  publish  his  award,  in  man- 
ner and  form  as  the  said  plaintiff  hath  in  his  petition  mentioned; 
and  of  this  he  puts  himself  upon  the  country. 

Note. — This  will  put  in  issue  the  award  itself;  its  being  made 
and  published  as  a  binding  award  on  the  parties. 

3.  The  said  plaintiff  did  not  tender  and  offer  to  the  said  defend- 
ant the  said  promissory  note  before  the  commencement  of  this  ac- 
tion, as  he  hath  in  his  petition  alleged ;  and  of  this  he  puts  him- 
self upon  the  country. 

18.   WARRANTIES. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  him;  because  he  saith 
that— 

1.  He,  the  said  defendant,  did  not  promise  the  said  plaintiff,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition 
alleged ;  and  of  this  he  puts  himself  upon  the  country. 

2.  The  said  horse,  in  said  petition  mentioned,  was  not  unsound, 
as  the  said  plaintiff  hath  in  his  said  petition  alleged ;  and  of  this 
he  puts  himself  upon  the  country. 

Note. — The  first  plea  will  put  in  issue  the  truth  of  the  warranty 
as  alleged ;  and  the  second,  the  fact  of  unsoundness  at  the  time  of 
the  sale  or  exchange. 

3.  The  said  defendant  did  furnish  to  the  said  plaintiff  the  said 
goods  and  chattels,  properly  packed  and  fit  to  be  sent  to  the  said 
English  market ;  and  of  this  he  puts  himself  upon  the  country. 


FORMS    OF   ANSWERS.  633 

4.  The  said  goods  and  chattels  were  not  wholly  unfit  for  the  pur- 
pose in  said  petition  stated,  nor  did  the  said  plaintiff  lose  the  benefit 
thereof,  as  he  hath  in  his  said  petition  alleged;  and  of  this  he  puts 
himself  upon  the  country. 

Note. — It  may  be  doubtful  whether  this  last  traverses  a  material 
allegation.  There  may  be  but  two  here :  First.  The  promise. 
Secondly.  The  breach.     The  balance  is  a  mere  question  of  damages. 

19.    ON   SALES    OF   REAL    ESTATE. 

And  the  said  defendant  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him ;  because  he  saith  that — 

1.  He  did  not  promise  the  said  plaintiff,  in  manner  and  form  as 
the  said  plaintiff  hath  in  his  said  petition  alleged  ;  and  of  this  he 
puts  himself  upon  the  country. 

Note. — This  puts  in  issue  the  contract  of  purchase,  as  that  was 
what  the  promise  related  to;  and  hence  this  issue  ought  to  put 
that  whole  matter  in  issue ;  because  unless  there  was  such  a  sale, 
there  could  be  no  promise  to  pay  as  alleged. 

2.  The  said  plaintiff  did  not  tender  to  the  said  defendant  the 
said  sum  of  $  ,  the  residue  of  said  purchase  money,  in  manner 
and  form  as  the  said  plaintiff  hath  in  his  said  petition  alleged ;  and 
of  this  he  puts  himself  upon  the  country. 

3.  The  said  defendant  did  not  refuse  to  make,  and  procure  to  be 
made,  to  the  said  plaintiff  a  good  title  to  the  said  premises,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition 
alleged  ;  and  of  this  he  puts  himself  upon  the  country. 

4.  The  said  plaintiff  did  not,  nor  would  he,  tender  a  good  and 
sufficient  deed  of  general  warranty,  conveying  the  said  premises 
to  the  said  defendant,  in  manner  and  form  as  the  said  plaintiff  hath 
in  his  said  petition  alleged ;  and  of  this  he  puts  himself  upon  the 
country. 

5.  The  said  plaintiff  was  not  seized  of  an  estate  in  fee  simple  in 
and  to  the  said  premises,  so  that  he  could  make  a  good  title  thereto 
to  the  said  defendant,  as  he  has  in  his  said  petition  alleged ;  and 
of  this  the  said  defendant  puts  himself  upon  the  country. 

<i.  The  said  plaintiff  did  not,  notify  the  said  defendant  of  the 
said  second  Bale  of  said  real  estate,  ami  demand  from  him  the  said 
sums  of  money,  as  the  said  plaintiff  hath  in  his  said  petition 
alleged  ;  and  of  this  he  puts  himself  upon  the  country. 


634  FORMS   OF   ANSWERS. 


7.  The  said  plaintiff  did  not  sign,  by  himself  or  agent,  any 
memorandum  or  agreement  in  writing,  binding  the  said  defendant 
to  pay  for  the  said  lands  so  sold,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  petition  declared;  and  of  this  he  puts 
himself  upon  the  country. 

20.   GUARANTIES. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that— 

1.  He  did  not  promise  the  said  plaintiff,  in  manner  and  form  as 
the  said  plaintiff  hath  in  his  said  petition  declared ;  and  of  this  he 
puts  himself  upon  the  country. 

2.  The  said  plaintiff  did  not  sell  and  deliver  the  said  goods  and 
chattels  to  the  said  E  F,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  declared ;  and  of  this  the  said  defendant 
puts  himself  upon  the  country. 

3.  The  goods  and  merchandise  so  sold  by  the  said  plaintiff  to 
the  said  E  F,  were  not  suitable  for,  nor  required  by,  the  said  E  F, 
in  the  way  of  his  said  trade,  as  the  said  plaintiff  hath  in  his  said 
petition  declared ;  and  of  this  he  puts  himself  upon  the  country. 

4.  The  said  plaintiff  did  not,  nor  would,  give  the  said  defendant 
reasonable  notice  that  he,  the  said  plaintiff,  had  or  would  credit 
the  said  E  F,  in  manner  and  form  as  the  said  plaintiff  hath  in  his 
said  petition  alleged  ;  and  of  this  he  puts  himself  upon  the  country. 

The  first  issue  will  raise  the  question  of  a  legal  guaranty,  and 
that  must  be  in  writing ;  the  second  will  test  the  accuracy  of  the 
sales  to  E  F  ;  the  third,  whether  the  goods  were  such  as  would  be 
covered  by  the  guaranty ;  the  fourth,  whether  the  proper  notice 
was  given  of  the  acceptance  of  the  guaranty.    See  note  to  petition. 

21.    PROMISES   TO    MARRY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  her  said  action  against  him  ;  because  he  saith 
that— 

1.  He,  the  said  defendant,  did  not  assume  and  promise,  in  man- 
ner and  form  as  the  said  plaintiff  hath  in  her  said  petition  thereof 
declared  against  him ;  and  of  this  he  puts  himself  upon  the 
country. 


FORMS   OP    ANSWERS.  C35 


2.  The  said  plaintiff  has  not  always  been  ready  and  willing  to 
marry  the  said  defendant,  nor  did  she,  on  the  said  day  in  said 
petition  mentioned,  offer  to  marry  the  said  defendant,  in  manner 
and  form  as  the  said  plaintiff  hath  in  her  said  petition  declared ; 
and  of  this  he  puts  himself  upon  the  country. 

3.  The  said  defendant  did  not,  nor  has  he,  refused  to  marry  the 
said  plaintiff,  in  manner  and  form  as  she  has  in  her  said  petition 
declared ;  and  of  this  he  puts  himself  upon  the  country. 

The  bad  character  of  the  plaintiff,  if  existing  at  the  time  of  the 
promise,  and  unknown  to  the  defendant,  renders  the  promise  void, 
and  should  be  admitted  under  the  first  issue ;  but  her  subsequent 
misconduct  would  now  have  to  be  specially  pleaded,  it  is  believed, 
since  it  admits  the  contract,  but  seeks  to  avoid  it  by  subsequent 
facts — facts  which  amount  to  a  release  and  discharge. 

22.    PROMISE    TO    SERVE    AND    EMPLOY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
said  petition  of  the  said  A  B.  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that— 

1.  He  did  not  assume  and  promise,  in  manner  and  form  as  the 
said  plaintiff  hath  in  his  said  petition  declared  against  him;  and 
of  this  he  puts  himself  upon  the  country. 

2.  He  did  not  refuse  to  receive  and  employ  the  said  plaintiff  on 
his  request,  as  the  said  plaintiff  hath  in  his  said  petition  alleged; 
and  of  this  he  puts  himself  upon  the  country. 

3.  The  said  plaintiff  did  not  offer  himself  to  the  said  defendant 
to  enter  into  his  employment  and  service,  as  he  hath  in  his  said 
petition  averred. 

4.  The  said  defendant  did  perform  his  said  work,  in  said  petition 
mentioned,  in  a  good  and  workmanlike  manner ;  and  of  this  he 
puts  himself  upon  the  country. 

5.  The  said  defendant  did  perform  all  the  said  work  and  labor  he 
was  to  perform,  in  and  by  virtue  of  the  said  contract,  and  did  not 
leave  unperformed  the  work,  as  is  in  said  petition  alleged ;  and  of 
this  he  puts  himself  upon  the  country. 

23.    AGENTS,    ETC. 

And  the  said  C  J),  defendant,  now  comes,  and  for  answer  to  the 

petition   of  the   said  A  B,  plaintiff,  saith    that  the   said    plaint  ill' 


636  FORMS   OF   ANSWERS. 


ought  not    to  have  his  said  action  against  him ;  because  ho  saith 
that— 

1.  lie  did  not  promise  the  said  plaintiff  in  manner  and  form  as 
the  said  plaintiff  hath  in  his  said  petition  alleged;  and  of  this  he 
puts  himself  upon  the  country. 

2.  The  said  defendant  did  not  sell  and  dispose  of  the  said  goods 
and  merchandise  for  a  bad  and  insufficient  bill  of  exchange,  as  the 
said  plaintiff  hath  in  his  said  petition  alleged ;  and  of  this  he  puts 
himself  upon  the  country. 

It  is  doubtful  whether  this  last  issue  will  be  held  good.  Ought 
he  not  to  meet  it  by  setting  out  the  sale  and  the  bill  he  did  take? 
In  that  case,  the  answer  would  be  that  "  he  sold  said  goods  to  one 
E  F,  he,  the  said  E  F,  then  being  a  man  in  good  standing  and 
credit,  for  the  sum  of  $  ;  and  for  the  payment  of  which  sum 
he  took  the  bill  of  the  said  ,  drawn  on  and  accepted  by  , 

payable  in  months  after  date ;  and  the  said  defendant  avers 

that  the  said  bill  of  exchange  was  at  the  time  held  and  considered 
an  approved  bill." 

24.  BY-LAWS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that — 

1.  He  does  not  owe  the  said  sum  of  money,  by  the  said  plaintiff  in 
the  said  petition  demanded,  in  manner  and  form  as  is  therein  set 
forth;  and  of  this  he  puts  himself  upon  the  country. 

2.  The  said  defendant  did  not  keep  the  said  gunpowder  within 
the  corporate  limits  of  said  town,  in  manner  and  form  as  the  said 
plaintiff  hath  in  said  petition  declared ;  and  of  this  he  puts  him- 
self upou  the  country. 

3.  There  is  no  such  by-law  in  force  in  the  said  town  of  ,  as 
the  said  plaintiff  hath  in  the  said  petition  set  forth  and  declared  > 
and  of  this  he  puts  himself  upon  the  country. 

4.  The  said  defendant  did  not,  as  is  alleged  in  said  petition,  rent 
to  the  said  E  F  the  said  premises,  to  be  kept  and  used  by  the  said 
E  F  as  and  for  the  purpose  of  permitting  and  carrying  on  therein 
gaming,  as  the  said  plaintiff  hath  in  the  said  petition  alleged  ;  and 
of  this  he  puts  himself  upon  the  country. 


FORMS   OP   ANSWERS.  637 


25.   JUDGMENT. 

And  the  said  C  D,  defendant,  now  conies,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that  there  is  no  such  record  of  said  recovery  now  remaining  in  the 
said  Court  of  Common  Pleas,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  petition  declared;  and  this  he  prays  may 
be  inquired  of  by  this  court. 

26.    OFFICIAL   BONDS. 

The  special  issues  or  denials  will  be : 

1.  That  the  defendants  did  not  make  and  deliver  the  said  writ- 
ing obligatory. 

2.  That  there  is  no  record  remaining  in  said  Probate  Court  of 
the  said  accounting  and  judgment,  as  is  in  said  petition  averred. 

All  other  defenses  must  be  by  new  facts,  as  the  settlement  is  a 
judgment,  and  the  parties  can  not  impeach  its  veracity. 

On  sheriffs  bonds,  special  denials  may  be  put  into  the  bond,  to 
the  judgment,  to  the  issue  of  the  execution,  to  the  existence  of  the 
return  ;  the  return  can  not  be  contradicted.  Under  the  old  prac- 
tice, nil  debet  was  held  a  good  plea.  Hyatt  v.  Eobinson  et  al.,  15 
Ohio,  372.  This  plea  admitted  the  bond,  and  put  in  issue  the  facts 
set  up  to  constitute  an  introduction  to,  and  a  breach  of,  the  bond. 
It  would  be  well  if  it  should  be  again  sanctioned  by  the  court, 
under  the  code,  as  a  sort  of  general  special  denial  in  such  cases;  it 
will  be  more  convenient  than  a  special  denial  of  each  material 
averment  separately.     If  allowed,  it  might  be  in  this  form  : 

{After  the  introduction  to  the  word  "  because,"  proceed  as  follows :) 
'•  they  say  that  they  do  not  owe  the  said  plaintiff  the  said  sum  of 
money,  by  him  in  his  petition  demanded,  or  any  part  thereof,  in 
manner  and  form  as  the  said  plaintiff  has  in  his  said  petition 
declared  ;  and  of  this  they  put  themselves  upon  tho  country." 

27.    LANDLORD    AND    TENANT. 

The  special  denials  in  these  actions  majr  of  course  be  many. 

1.  Tbe  Lease  may  be  denied.  kl.  That  he  does  not  owe  the  rent. 
3.  That  he  has  committed  no  waste.  4.  That  no  repairs  were 
necessary,  etc.     It  is  unnecessary  to  give  forms  for  them. 


638  FORMS   OP   ANSWERS. 


28.    FOR   INJURIES    TO   PERSONS   AND   ANIMALS. 

(After  the  introduction,  proceed  .-) 

1.  That  the  said  defendant  is  not  the  owner  (or,  harborcr,  as  the 
averment  is,)  of  the  said  dog,  in  the  said  plaintiff's  petition  men- 
tioned ;  and  of  this  he  puts  himself  upon  the  country. 

2.  That  the  said  defendant  did  not  know  that  the  said  dog  was 
accustomed  to  bite  mankind  (or,  was  of  a  ferocious  or  mischievous 
nature; ;  and  of  this  he  puts  himself  upon  the  country. 

3.  That  the  said  dog  did  not  kill  and  injure  the  cattle  (or,  hogs, 
horses,  sheep,  etc.,)  of  the  said  plaintiff,  as  he  hath  in  his  said  pe- 
tition set  forth  ;  and  of  this  he  puts  himself  upon  the  country. 

4.  That  the  said  plaintiff,  by  reason  of  the  wrongs  in  said  peti- 
tion complained  of,  has  not  sustained  damage  to  the  said  sum  of 
$  ,  as  he  has  in  his  said  petition  averred;  and  of  this  he  puts 
himself  upon  the  country. 

This  last  one  seems  unnecessary,  since  the  same  issue  is  raised 
on  an  inquiry  of  damages.  In  these  cases,  the  oath  of  plaintiff 
does  not  extend  to  the  amount  of  damages  claimed.  Vide  sees. 
112  and  127  of  Code,  2  S.  &  C.  983,  987.  Section  127  will  justify 
such  a  traverse. 

29.  OBSTRUCTING   STREET. 

1.  The  said  defendant  did  not  wrongfully  obstruct  the  said  pub- 
lic highway,  (or,  street,)  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  complained  against  him. 

2.  The  said  plaintiff  was  overturned  in  his  said  carriage,  as  he 
has  in  his  said  petition  alleged,  of  his  own  fault  and  negligence, 
and  not  for  the  reason  in  his  said  petition  alleged. 

30.  LEAVING    HOLE    OPEN. 

1.  The  said  defendant  denies  that  he  was  possessed  of  the  said 
premises,  in  the  said  petition  described,  at  the  time  in  the  said 
petition  named. 

2.  The  said  plaintiff  of  his  own  fault  and  negligence  fell  into  the 
said  hole,  and  not  in  manner  and  form  as  he  hath  in  his  said  peti- 
tion set  forth. 

3.  The  said  defendant  did  not  permit  the  said  hole  to  be  and 
remain  open,  to  the  great  danger  of  persons  passing  along  said 
highway,  (or,  street,)  as  the  said  plaintiff  hath  in  his  said  petition 
declared. 


FORMS   OP   ANSWERS.  039 


31.    FLOWING   WATER. 

1.  The  said  plaintiff  is  not  possessed  of  the  said  premises  and 
mill,  in  his  said  petition  described,  in  manner  and  form  as  therein 
averred. 

2.  The  defendant  did  not  erect  or  keep  up  the  said  dam,  in  man- 
ner and  form  as  the  said  plaintiff  hath  in  his  said  petition  de- 
clared. 

3.  The  said  defendant  did  not  flow  the  water  back  upon  the  mill 
of  the  said  plaintiff,  in  manner  and  form  as  the  said  plaintiff  hath 
in  his  said  petition  declared  against  him. 

4.  The  said  defendant  did  not  divert  the  water  in  said  stream,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition 
declared  against  him. 

32.    MALICIOUS   PROSECUTION. 

1.  The  said  defendant  did  not  maliciously  cause  the  said  writ  of 
attachment  to  be  issued,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  declared  against  him. 

2.  The  said  defendant  did  not  falsely  and  maliciously,  and  with- 
out probable  and  reasonable  cause,  cause  the  said  plaintiff  to  be 
arrested,  in  manner  and  form  as  the  said  plaintiff  hath  in  his  said 
petition  declared  against  him. 

33.    LIBEL   AND   SLANDER. 

Little  else  than  not  guilty  can  bo  pleaded  as  a  denial  in  an 
action  of  this  character.  A  justification  must  be  pleaded  as  new 
matter.  The  inducement,  where  there  is  one,  may  be  denied — as 
in  slander  of  one  in  his  profession,  in  his  title,  etc. 

34.   COMMON   CARRIERS. 

1.  The  said  defendant  says  that  he  is  not  a  common  carrier,  as 
the  said  plaintiff  hath  in  his  said  petition  alleged  against  him. 

Note. — As  to  who  is  a  common  carrier,  see  Samms  v.  Stewart, 
20  Ohio,  69. 

2.  The  said  defendant  did  not  receive  the  said  goods  and  chattels 
of  the  Baid  plaintiff,  in  manner  and  form  as  the  said  plaintiff  hath 
in  his  said  petition  alleged. 


1)40  FORMS   OF   ANSWERS. 


35.    FALSE    REPRESENTATIONS. 

1.  The  said  defendant  did  not  make  the  representation  in  said 
petition  set  forth,  in  manner  and  form  as  therein  alleged. 

2.  The  said  defendant  did  not,  at  the  time  he  so  made  the  said 
representation  in  said  petitions  set  forth,  know  that  the  same  were 
untrue  and  false. 

3.  The  said  defendant  did  not  sell  to  the  said  plaintiff  the  horse 

in  the  said  petition  mentioned,  in  manner  and  form  as  is  therein 

alleged. 

36.   COLLISIONS. 

The  special  denials  are  few  in  these  cases ;  the  plea  of  not  guilty 
is  the  one  to  raise  the  true  issue.     The  defendant  may  deny — 

1.  That  he  was  the  owner  and  possessed  of  the  said  wagon,  etc., 
by  which  the  injury  was  done. 

2.  That  he  did  not  through  negligence  run  foul  of  and  against 
the  wagon,  boat,  or  vessel  of  the  plaintiff. 

3.  That  the  plaintiff  is  not  the  owner  of  the  wagon,  boat,  etc., 
injured. 

4.  That  the  said  collision  happened  from  the  fault  of  the  plaint- 
iff, and  not  from  that  of  the  defendant,  as  is  in  said  petition  alleged. 

37.    BY    A    SHERIFF. 

The  sheriff  may  aver — 

1.  That  there  is  no  record  of  the  judgment. 

2.  That  said  execution  did  not  come  into  his  hand. 

3.  That  he  did  not  levy  on  the  said  goods  and  chattels  in  said 
petition  named. 

4.  That  he  did  not  leave  the  same  with  the  said  defendant. 

5.  That  the  said  goods  were  not  lost. 

6.  That  the  said  E  F  was  not  justly  indebted  to  the  said  plaint- 
iff in  the  said  sum  of  $  ,  as  the  said  plaintiff  has  in  his  said 
petition  alleged. 

7.  That  the  said  plaintiff  caused  said  writ  of  capias  to  be  issued 
without  having  filed  any  sufficient  affidavit  to  authorize  the  issuing 
thereof. 

Note. — It  was  held  that  a  sheriff  was  not  liable  for  failing  to 
execute  a  capias  issued  contrary  to  law.  Gates  v.  Maxon,  2  West- 
ern Law  Journal,  405. 

8.  That  the  said  defendant  did  not  permit  the  said  E  F  to  go  at 
large  and  escape,  as  is  in  said  petition  alleged. 


FORMS   OP    ANSWERS.  641 


9.  That  the  said  defendant  did  not  arrest  the  body  of  the  said 
E  F,  as  is  in  said  petition  alleged. 

38.   BY   A  WITNESS. 

The  witness  may  answer — 

1.  That  the  said  plaintiff  did  not  cause  the  said  defendant  duly 
to  be  served  with  a  subpena,  as  the  said  plaintiff  hath  in  his  said 
petition  alleged. 

2.  That  the  said  defendant  did  not  willfully  refuse  to  attend  at 
the  time  and  place  of  the  said  trial,  as  the  said  plaintiff  hath  in  his 
said  petition  alleged. 

39.   IN   TROVER. 

It  may  be  averred — 

1.  That  the  said  goods  and  chattels  are  not  the  property  of  the 
said  plaintiff,  as  he  hath  in  his  said  petition  alleged. 

2.  That  the  said  defendant  did  not  convert  the  said  goods  and 
chattels,  in  manner  and  form  as  the  said  plaintiff  hath  in  his  said 
petition  described. 

40.   IN   ASSAULTS. 

The  only  issue  in  these  cases  is  not  guilty.  There  can  be  no 
special  denial,  since  there  is  but  one  fact  averred — the  assault. 
Where  :i  battery  also  is  charged,  or  a  wounding,  or  any  other  great 
bodily  harm,  the  pleader  must  understand  the  facts  of  the  case.  If 
there  was  no  wounding,  he  may  plead  not  guilty  as  to  that,  and 
justify  as  to  the  balance.     Vide  Special  Pleas  in  Justification. 

41.    TRESPASS   TO   GOODS. 

The  answer  will  be — 

1.  That  the  said  goods  and  chattels  are  not  the  property  of  the 
said  plaintiff,  as  he  hath  in  his  said  petition  alleged. 

2.  That  the  said  defendant  did  not  take  the  said  goods  and  chat- 
tels, as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

3.  That  the  said  plaintiff  was  not  possessed  of  the  said  goods  and 
chattels,  as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

42.  TRESPASS  TO  REAL  PROPERTY. 

The  defendant  may  answer — 

1.  That  the  said  plaintiff  was  not  possessed  of  thesaid  premises, 
in  thesaid  petition  described,  in  manner  and  form  as  the  said  plaint- 
ill'  hath  therein  alleged. 
vol.  i — 11 


642  FORMS  OF   ANSWERS. 


2.  That  the  said  plaintiff  was  not  entitled  to  the  possession  of 
the  said  premises,  in  manner  and  form  as  he  hath  in  his  said  peti- 
tion alleged. 

3.  That  the  said  defendant  did  not  break  and  enter  the  premises 
of  the  said  plaintiff,  in  manner  and  form  as  he  hath  in  his  said 
petition  alleged. 

4.  That  he  did  not  take  and  carry  away  the  said  goods  and  chat- 
tels, in  said  petition  named,  as  the  said  plaintiff  hath  in  his  said 
petition  alleged. 

The  first  denial  will  put  in  issue  simply  the  possession  of  the 
plaintiff.  Trespass  is  a  wrong  to  this,  and  no  one  not  in  possession 
can  sustain  trespass. 

The  second  will  probably  raise  a  question  involved  under  the 
plea  of  not  guilty,  the  title  of  the  plaintiff  as  against  that  of  the 
defendant.  If  this  denial  will  not  raise  that  question,  then  title 
must  be  specially  pleaded. 

The  third  is  a  denial  of  the  entry  simply,  and  it  must  be  held  to 
admit  everything  else,  unless  under  this  issue  the  question  of  title 
might  be  raised.  If  the  denial  was  that  he  did  not  unlawfully  break 
and  enter,  possibly  the  question  of  title  might  be  raised  under  this 
issue. 

The  fourth  denial  is  immaterial,  unless  the  count  is  so  framed 
that  a  recovery  can  be  had  for  the  goods  alone ;  otherwise  the 
taking  of  the  goods  is  a  mere  matter  of  aggravation,  and  so  not 
issuable. 

5.  That  the  said  defendant  did  not  unlawfully  break  and  enter 
the  close  of  the  said  plaintiff,  as  the  said  plaintiff  hath  in  his  said 
petition  alleged. 

Note. — This  denial  of  breaking  the  close  of  the  plaintiff  may 
best  raise  the  question  of  title.  It  was  on  account  of  this  averment 
in  the  forms,  that  title  was  held  to  be  put  in  issue  in  the  old 
action  of  trespass. 

6.  That  the  said  close  mentioned  in  said  petition  is  not  the  close 
of  the  said  plaintiff,  in  manner  and  form  as  the  said  plaintiff  hath 
therein  declared. 

Note, — Keyse  v.  Powell,  18  Eng.  L.  &  Eq.  411.  This  seems 
to  be  the  form  under  the  new  rules  in  England  for  raising  the  ques- 
tion of  title. 


FORMS   OP   ANSWERS.  643 


NEW  MATTER  CONSTITUTING  A  DEFENSE. 
43.    TO   JURISDICTION. 

And  now  conies  the  said  C  D.  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  court  here 
ought  not  further  to  take  cognizance  of,  or  sustain  the  action  afore- 
said ;  because  he  says  that  the  cause  of  the  action  aforesaid,  if  any 
accrued  to  the  said  plaintiff,  accrued  to  him,  the  said  plaintiff,* 
within  the  county  of  ,  and  within  the  jurisdiction  of  the  Court 

of  Common  Pleas,  within  and  for  said  county  of  ,  and  not 

within  the  county  of  ,  within  the  jurisdiction  of  this  court; 

and  this  he  is  ready  to  make  appear. 

44.   ANOTHER    FORM. 

(Follow  the  last  to  the  *3  then  add:)  out  of  the  jurisdiction,  to  wit, 
at  the  county  of  ,  and  not  in  the  said  county  of  ,  (where 

suit  is  brought.)  in  said  petition  named,  or  elsewhere  within'  the 
jurisdiction  of  this  court;  and  this  he  is  ready  to  make  appear. 

These  forms  will  answer  when  the  action  is  brought  in  the  wrong 
county  under  section  45,  subdivisions  1,  2,  and  3.  The  suit  in 
these  cases  must  be  brought  in  the  county  where  the  land  lies,  and 
not  elsewhere.  The  averment  that  the  cause  of  action  accrued  to 
the  plaintiff  in  the  county  where  the  land  lies,  is  sufficient  under 
the  code,  since  it  was  so  under  the  old  practice.  Story's  Pleading, 
7.  So  the  causes  of  action  mentioned  in  section  47  are  also  local ; 
and  if  brought  in  the  wrong  county,  this  form  of  plea  or  answer 
will  be  sufficient. 

There  may  occur  cases  where  a  more  specific  statement  of  the 
facts  may  be  necessary.  If  so,  they  must  arise  under  sections  48 
and  52.     In  such  cases  the  following  forms  may  be  preferable  : 

45.     ANSWER    BY     CORPORATION     CREATED     BY     THE     LAWS     OF     THIS 

STATE. 

And  the  said  C  D,  defendant  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  court  here  ought 
not  further  to  take  cognizance  of,  or  sustain  the  action  aforesaid, 
because  the  said  defendant  saith  that  the  said  defendant  :;:  is  a  cor- 
poration created  by  the  laws  of  this  State,  and  that  its  principal 

Office   and   place  of  business    is   situate  at  ,  ill   the  count)'  of 

,  and  not  in  the  .-aid  county  of  ,  (where  suit  is,)  within 


644  FORMS   OP   ANSWERS. 

the  jurisdiction  of  this  court;  and  this  the  said  defendant  is  ready- 
to  make  appear. 

46.  THE  SAME  BY  A  FOREIGN  CORPORATION. 

{Follow  the  last  to  *,  then  continue  as  follows :)  is  a  foreign  cor- 
poration, created  by  the  laws  of  the  State  of  ,  and  not  by  the 
laws  of  this  State,  and  that  there  is  no  property  of  said  defendant, 
nor  any  debts  due  and  owing  to  the  said  defendant  in  the  said 
county  of  ,  (where  suit  is ;)  and  this  the  said  defendant  is  ready 
to  make  appear. 

47.    MATTERS   IN    ABATEMENT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  A  B  ought 
not  to  prosecute  his  said  action  against  him  ;  because  he  saith  that 
the  work,  and  labor,  and  money,  mentioned  in  the  petition  of  the 
said  A  B,  was  done  and  paid  by  the  said  plaintiff  for  and  at  the 
request  of  the  defendant,  jointly  with  one  E  F  and  G  H,  who  are 
all  living,  and  ought  to  be  joined  as  defendants  in  this  action ;  and 
this  he  is  ready  to  make  appear. 

This  is  the  form  adopted  and  held  good  in  Sweet  v.  Tuttle,  10 
Pr.  40, 162.  And  it  was  there  held  that  it  might  be  joined  with 
matter  pleaded  in  bar  of  the  action.  The  same  doctrine  is  main- 
tained in  Bridge  v.  Payson,  5  Sandf.  S.  C.  210 ;  but  the  contrary 
doctrine  was  held  in  Gardner  v.  Clark,  6  Pr.  449.  The  decision  in 
Sandford  was  made  by  the  Superior  Court  of  New  York  city ;  and 
the  one  in  10  Pr.,  by  Marvin,  Bowen,  and  Green,  JX,  of  the  Su- 
preme Court,  while  the  decision  in  6  Pr.  was  made  by  Allen,  Hub- 
bard, and  Pratt,  JJ.,  of  the  Supreme  Court.  The  preponderance 
is  in  favor  of  allowing  the  plea  to  be  put  in  with  other  matter  in 
bar.  The  last  decision  was  made  after  time  had  been  given  to  dis- 
cuss the  two  conflicting  cases,  and  may  be  supposed  to  reflect  the 
present  opinion  of  the  courts  of  the  State.  The  same  question 
came  up  again  in  10  Pr.  162,  and  was  decided  as  the  prior  case  had 
been. 

48.    PLAINTIFF   AN    INFANT    OR   MARRIED   WOMAN,   SUING   WITHOUT    A 

NEXT   FRIEND. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  A  B  ought 
not  to  be  permitted  further  to  prosecute  his  said  action ;  because 


FORMS   OP   ANSWERS.  645 


he  saitli  that  the  said  A  B  is  an  infant,  under  the  age  of  twenty- 
one  years,  (or,  eighteen  years,  if  a  female;  or,  was,  at  the  com- 
mencement of  this  suit,  under  coverture  of  one  ,  her  hus- 
band, and  that  said  is  still  living  at  ;)  and  this  he  is 
ready  to  make  appear. 

49.   WANT   OP  PARTIES. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  he  permitted  further  to  prosecute  his  action  aforesaid 
against  this  defendant ;  because  he  saith  that  are  tenants  in 

common  with  the  said  plaintiff  in  the  lands  and  tenements  set 
forth  and  demanded  in  said  petition,  and  that  the  said  are 

not  made  parties  to  this  action  ;  and  this  he  is  ready  to  make 
appear. 

50.    FOR   DEFECT   OP   PLAINTIFFS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  be  permitted  further  to  prosecute  his  said  action  ;  be- 
cause he  saith  that  the  said  sum  of  money,  in  said  petition  de- 
manded, is  not  due  from  this  defendant  to  the  said  A  B  alone;* 
but  that  the  same  is  due  and  owing  from  this  defendant  to  one 
,  who  is  still  living,  jointly  with  the  said  A  B  ;  and  this  he  is 
ready  to  make  appear. 

51.  WANT   OF   DEFENDANTS. 

(Follow  the  last  to  the  *,  then  proceed ;)  but  that  the  same  is  due, 
and  owing  from  this  defendant,  jointly  with  one  ,  who  is  still 

living,  to  the  said  plaintiff;  and  this  he  is  ready  to  make  appear. 

The  above  forms  are  proper  where  the  petition  is  on  the  indeb- 
itatus counts,  or  when  no  contract  to  pay  is  set  forth.  "Where  the 
petition  sets  forth  a  contract,  the  following  form  must  be  used: 

52.  DEFECT   OF   PLAINTIFFS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  II.  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  prosecute  his  said  action  ;  because  he 
saith  that  the  said  contract,  (or,  several  contracts,)  in  his  said  pe- 
tition set,  forth,  was,  (or,  were,  each  and  every  one  of  them,)*  made 
by  the  said  defendant,  not  with  the  said  A   B,  plaintiff,  alone,  but 


646  FORMS   OP   ANSWERS. 


by  this  defendant  with  the  said  A  B,  jointly  with  one  ,  who 

is  still  living ;  and  this  tho  said  defendant  is  ready  to  make  appear. 

53.     DEFECT    OP   DEPENDANTS. 

{After  *  in  above,  add:)  not  made  by  this  defendant  separately 
with  the  said  plaintiff,  but  was  (or,  were)  made  by  this  defendant, 
jointly  with  one  ,  who  is  still  living,  and  not  otherwise ;  and 

this  the  said  defendant  is  ready  to  make  appear. 

54.  MISNOMER   OP   PLAINTIFFS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  be  permitted  further  to  prosecute  his  said  action,  be- 
cause he  saith  that  the  said  plaintiff  is  named,  and  known,  and 
called  by  the  name  of  ,  and  not  by  the  said  name  of  , 

as  is  in  said  petition  averred;  and  this  the  said  defendant  is  ready 
to  make  appear. 

55.  MISNOMER   OP   DEFENDANT. 

And  ,  sued  by  the  name  of  C  D,  in  the  action  of  said  A  B, 

plaintiff,  now  comes,  and  for  answer  to  the  petition  of  said  A  B, 
plaintiff,  saith  that  the  said  plaintiff  ought  not  to  be  permitted  fur- 
ther to  prosecute  his  said  action ;  because  he  saith  that  this  defend- 
ant is  named,  known,  and  called  by  the  said  name  of  ,  and 
not  by  the  said  name  of  0  D,  as  he  is  in  said  petition  named ;  and 
this  he  is  ready  to  make  appear. 

56.  COVERTURE    OF   DEPENDANT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  further  to  be  permitted  to  prosecute  his  said  action ;  because 
she  saith  that  she  was,  on  the  day  of  the  commencement  of  this 
suit,  covert  of  one  ,  her  husband,  and  that  the  said  is 

still  living  at  ,  in  the  county  of  ,  and  State  of  ; 

and  this  she  is  ready  to  make  appear. 

Sturges  v.  Burton,  8  Ohio  St.  215,  when  to  answer  and  when  to 
demur.     Vide  this  case. 

57.  ANOTHER   ACTION   PENDING. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  prosecute  his  said  action ;  because 


FORMS   OF   ANSWERS.  G-47 


he  saith  that  heretofore,  on  the        day  of  ,  a.  d.  18     ,  the  said 

plaintiff  commenced  an  action  against  this  defendant  in  the  Court 
of  Common  Pleas,  within  and  for  the  county  of  ,  and  State 

of  ,  against  this  defendant,  for  the  same  cause  (or,  causes)  of  . 

action  set  forth  in  the  said  petition  of  the  said  plaintiff,  as  by  the 
record  thereof  will  appear  ;  and  that  the  said  action  so  heretofore 
commenced  by  the  said  plaintiff  against  this  defendant  still  re- 
mains undetermined  in  said  court  of  ;  and  this  the  said 
defendant  is  ready  to  make  appear. 

NEW  MATTER  IN   BAR  OF  ACTION. 

Statute  of  Limitations. 

58.   CONTRACTS   NOT   IN  WRITING,  OR  LIABILITY  CREATED  BY  STATUTE, 
OTHER   THAN   A    FORFEITURE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  this  defendant;  because 
he  saith  that  the  said  cause  (or,  if  more  than  one,  said  several 
causes.)  of  action  in  the  said  plaintiff's  petition  set  forth,  did  not 
accrue  to  the  said  plaintiff  against  this  defendant*  within  six  years 
next  before  the  commencement  of  this  action ;  and  this  he  is  ready 
to  make  appear. 

59.    CONTRACTS   IN    WRITING. 

Follow  the  above  to  *,  then  add :)  within  fifteen  years  next  before 
the  commencement  of  this  action ;  and  this  he  is  ready  to  make 
appear. 

The  above  forms  will  answer  for  all  actions  with  a  mere  change 
of  the  time  of  limitation.  Four  years  are  the  limitation  for  actions 
for  trespass  on  real  property,  for  injuring,  taking,  or  detaining 
persona]  property,  whether  the  property  is  specifically  demanded 
or  not :  for  injury  to  the  rights  of  the  plaintiff  not  arising  on  con- 
tracf  or  before  provided  for;  an  action  for  relief,  on  the  ground  of 
fraud,  is  to  date  from  the  discovery  of  fraud.  One  year  to  actions 
for  libel,  slander,  assault,  battery,  malicious  prosecution,  false  im- 
prisonment, on  a  statute  for  a  penalty  or  forfeiture,  unless  the  stat- 
in creating  tin-  penalty  or  forfeiture  fixes  a  different  limitation. 
Ten  years  t'>  actions  on  official  bonds,  or  undertakings  of  executor, 
administrator,  guardian,  sheriff,  or  other  officer,  and  upon  bonds 


648  FORMS   OP   ANSWERS. 


given  in  attachment,  injunctions,  aiTOst,  or  in  any  case  whatever 
required  by  statute ;  also  in  an  action  for  relief  not  provided  for 
in  previous  cases. 

60.   BY   EXECUTOR   OR   ADMINISTRATOR. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  this  defendant ;  because  he 
saith  that  more  than  four  years  next  before  the  commencement  of 
this  suit,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  he,  the  said 

defendant,  Avas,  by  the  Probate  Court,  within  and  for  the  county  of 
,  duly  appointed  administrator  of  the  goods  and  estate  of 
the  said  ,  (the  intestate,)  and  then  and  there  accepted  that 

trust,  and  that  afterward,  within  three  months  from  his  acceptance 
of  the  said  trust  as  aforesaid,  to  wit,  on  the        day  of  ,  a.  d. 

18  ,  he  did  cause  a  notice  of  his  said  appointment  to  be  published 
three  consecutive  weeks,  in  the  ,  a  newspaper  of  general  cir- 

culation in  said  county  of  ;  and  this  he  is  ready  to  make 

appear. 

61.    CLAIM    REJECTED   AND   NOT    SUED   IN   SIX   MONTHS. 

(Follow  the  above  to  the  word  "because,"  then  say:)  because  he 
saith  that  the  said  plaintiff,  more  than  six  months  before  the  com- 
mencement of  this  suit,  to  wit,  on  the  day  of  ,  a.  d.  18  , 
did  present  the  said  claim  against  the  estate  of  the  said  , 
deceased,  to  this  defendant,  as  such  administrator,  for  allowance ; 
and  this  defendant  did  then  dispute  and  refuse  to  allow  said  claim 
as  a  valid  claim  against  said  estate;  and  this  defendant  further 
saith  that  said  claim  has  never  been  referred,  in  conformity  to  the 
provisions  of  the  statute  in  such  case  made  and  provided;  and  this 
he  is  ready  to  make  appear. 

Where  the  claim  is  not  due  at  the  time,  and  it  is  presented  for 
allowance,  it  must  be  sued  in  six  months  after  it  becomes  due,  or 
it  will  be  barred.  Swan's  Stat.  378,  sec.  88.  Hence,  in  such  a  case, 
the  form  would  have  to  be  changed. 

62.   WHERE   THE   CLAIM   IS   NOT    DUE   WHEN   REJECTED. 

(Begin  as  in  59 :)  because  he  saith  that  the  said  plaintiff  did,  on 
the        day  of  ,  a.  d.  18     ,  present  and  exhibit  said  claim  to 

this  defendant,  as  administrator  as  aforesaid,  for  allowance,  and 
that  this  defendant  did  then  dispute  the  justness  of  said  claim, 


FORMS   OP   ANSWERS.  649 


and  refused  to  allow  the  same  as  a  valid  claim  against  the  estate 
of  the  said  ,  deceased;  and  this  defendant  further  saith  that 

the  said  plaintiff  did  not,  within  six  months  after  the  said  claim 
became  due,  according  to  the  tenor  and  effect  of  said  promissory 
note  (or,  hill  of  exchange,  contract,  etc.,  as  the  case  may  be,)  com- 
mence a  suit  for  the  recovery  thereof  against  this  defendant,  as 
such  administrator  ;  and  this  he  is  ready  to  make  appear. 

In  case  of  an  executor,  these  forms  may  have  to  he  changed  very 
slightly  in  the  averment  of  the  appointment. 

The  averment  might  be  that  the  said  caused  the  last  will 

and  testament  to  be  admitted  to  probate,  and  took  upon  himself 
the  execution  of  said  trust,  by  giving  surety  as  the  law  requires. 

An  administrator  or  executor  can  not,  by  a  new  promise,  revive 
a  claim  once  barred,  even  under  the  general  statute  of  limitation. 
Drouillard  r.  Wilson,  Adm'r  of  White,  10  West.  Law  J.  385  ;  Hill 
v.  Henry,  17  Ohio,  9  ;  Ex'r  of  Niemcewicz  v.  Bartlett's  Adm'r,  13 
Ohio,  271.  In  Massachusetts  it  has  been  repeatedly  decided  that 
the  four  years  limitation  could  not  be  waived  by  the  personal 
representative.  Brown  v.  Anderson,  13  Mass.  201 ;  Dawes  v.  Shed, 
15  lb.  6;  Ex  parte  Allen,  15  lb.  58;  Thompson  v.  Brown,  1G  lb. 
172;  Heath  r.  Watts,  5  Pick.  140. 

Can  a  plea  of  the  statute  of  limitation  be  set  up  after  a  default  ? 
Yes.  Vide  Wood  v.  Ward,  10  West.  Law  J.  505,  where  the  whole 
law  of  the  question  is  examined;  and  the  cases  of  Sheets  v.  Bald- 
win, 12  Ohio,  120,  and  Newsom's  Adm'r  v.  Barr,  18  lb.  240,  are 
commented  on  and  explained.  The  Ohio  cases  simply  decide  that 
it  is  in  the  discretion  of  the  court  to  permit  it ;  and  no  court  has 
a  right,  in  its  discretion,  to  refuse  to  one  what  it  permits  to  an- 
other. What  right  has  the  court  to  say  to  A,  "You  may  plead  the 
statute,"  and  to  B,  "  You  shall  not?" 

63.    INFANCY. 

And  the  said  C  D,  defendant,  now  comes,  by  E  F,  his  guardian 
for  the  suit,  and  for  answer  to  the  petition  of  the  said  A  B,  plaint- 
iff, saith  that  the  said  plaintiff  ought  not  to  have  his  said  actioo 
thereof  against  this  defendant  ;  because  he  saith  that,  at  the  time 
of  making  said  contrad  and  promise,  (or,  said  several  contracts 
and  promises,  ij  more  th<m  one  count,)  he,  the  said  defendant,  was 

an  infant  within  tie'  age  of  twenly-one  years,  (or.  eighteen  years, 

if  a  female^    to  wit,  of  the  age  of  years,  and  no  more;  and 

this  be  is  ready  to  make  appear. 


650  FORMS   OF   ANSWERS. 


64.   COVERTURE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  this  defendant;  because  she 
saith  that,  before  and  at  the  time  of  making  the  said  contract  and 
promise,  (or,  the  said  several  contracts  and  promses,)  in  said  peti- 
tion set  forth,  she,  the  said  defendant,  was,  (if  husband  is  alive,  and 
still  is,)  the  wife  of  and  married  to  one  ,  (if  alive,  add,  and 

who  is  now  living  at  ,  etc. ;)  and  this  she  is  ready  to 

make  appear. 

65.   TWENTY-ONE   YEARS   OF   ADVERSE   ENJOYMENT   OF   REAL   ESTATE 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  AB,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  aforesaid  action  agaiost  him;  because  he  saith  that 
the  said  cause  of  action  did  not  accrue  to  the  said  plaintiff  within 
twenty-one  years  next  before  the  commencement  of  this  action ; 
and  this  he  is  ready  to  make  appear. 

It  is  probably  not  necessary  to  plead  the  limitation  in  an  action 
for  the  recovery  of  real  estate,  though  it  may  be  pleaded. 

66.    TWENTY-ONE   YEARS   ENJOYMENT    OF   AN   EASEMENT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him  ;  because  he  saith  that  the 
said  defendant,  and  those  under  whom  he  claims  said  premises, 
have,  for  more  than  twenty  years  next  before  and  preceding  the 
bringing  of  this  action,  continuously  kept  up  the  said  dam  and 
flowed  back  the  said  water  of  said  stream,  in  manner  and  form  as 
the  said  plaintiff  hath  in  his  said  petition  declared,  adversely  to 
the  right  of  the  said  plaintiff  and  those  under  whom  he  claims  the 
said  premises  and  the  title  thereto ;  and  this  he  is  ready  to  make 
appear. 

Under  the  code,  such  a  defense  must  be  pleaded ;  and  as  all  fic- 
tions are  prohibited,  such  a  defense  can  not,  as  formerly,  be  set  up 
under  the  pretense  of  a  grant.  The  truth  must  be  set  forth,  and 
that  is  not  a  grant,  but  an  adverse  possession  ripening  into  a  right 
in  twenty  years. 


F0RJIS   OP   ANSWERS.  651 


67.  DURESS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  AB,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  this  defendant;  because  he  saith 
that  the  said  defendant,  before  and  at  the  time  of  making  said 
promissory  note  (or,  bill  of  exchange;  or,  contract  in  writing,  as  the 
case  may  be,)  in  said  petition  set  forth,  was  imprisoned  by  the  said 
plaintiff,  and  others  in  collusion  with  him,  at  ,  in  the  county 

of  ,  and  was  then  and  there  kept  and  detained  in  prison, 

until  he,  the  said  defendant,  through  force  and  restraint  of  that 
imprisonment,  there  made  and  gave  the  said  promissory  note  to 
the  said  plaintiff;  and  this  he  is  ready  to  make  appear. 

68.  TENDER. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  him,  the  said  defendant ; 
because  he  saith  that,  after  the  said  sum  of  money  so  in  the  peti- 
tion of  the  said  plaintiff  demanded,  to  wit,  the  said  sum  of  $  , 
became  due  and  owing  from  this  defendant  to  the  said  plaintiff,  he, 
this  defendant,  did,  on  the         day  of  ,  a.  d.  18     ,  tender  to 

the  said  plaintiff  the  said  sum  of  S  ,  together  with  $  ,  inter, 
est  then  due  thereon,  who  then  refused  to  receive  the  same;  and 
the  said  defendant  further  saith  that,  from  the  time  of  making  the 
said  tender  up  to  the  time  of  the  commencement  of  this  suit,  the 
said  defendant  always  hath  been,  and  still  is,  ready  to  pay  to  the 
said  plaintiff  the  said  sum  of  8  ,  principal,  and  the  said  sum 
of  |  ,  interest  then  due  thereon,  if  the  said  plaintiff  will  accept 
the  same;  and  he  further  brings  said  sums  of  money  here  into 
court,  ready  to  he  delivered  to  the  said  plaintiff,  whenever  he  will 
accept  the  same  ;  and  this  he  is  ready  to  make  appear. 

Where  the  plaintiff  demands  a  larger  sum  than  the  defendant 
admits  to  be  due,  and  the  defendant  has  tendered  the  sum  which 
In'  admits  to  be  dm-,  the  answer  must  assume  a  twofold  character 
— that  of  a  tcudm-  of  what  is  admitted  to  be  due.  and  a  denial  of 
indebtedness  tteyond  thai  sum.  The  above  form  can  he  easily  va- 
ried to  suit  such  a  ease.  Tin:  defendant  can  say,  thai,  "  as  I"  , 
parcel  of  said  sum  of  $  ,  so  by  the  said  plaintiff  demanded,  tho 
said  defendant  did  tender  the  same,"  as  is  stated  in  the  above  form, 

leaving  outj  <>r  oourse,  all  mention  of  interest,  if  that  is  included 


C52  FORMS   OF   ANSWERS. 


in  the  sum  tendered,  and  then  proceed  :  "  and  the  said  defendant 
further  saith  that,  as  to  the  residue  of  said  sura  of  $  ,  so  de- 
manded, he  docs  not  owe  the  same  to  the  said  plaintiff;"  or  if  he  has 
paid  the  balance,  then  answer  that,  "  as  to  the  balance,  he  has  paid 
the  same  to  the  said  plaintiff."  Or  the  balance  may  be  composed 
of  illegal  interest,  and  then,  after  the  plea  of  tender,  the  answer 
must  set  out  the  facts  which  show  the  illegal  consideration  of  that 
part  of  the  note.  Indeed,  an  answer  setting  up  a  tender  of  part 
may  be  joined  with  any  other  defense  which  the  defendant  may 
have  to  the  balance  claimed,  whether  that  defense  is  founded  upon 
facts  which  show  that  the  money  was  never  due,  or  that  there  has 
been  a  part  failure  of  consideration,  or  that  the  sum  has  been  paid, 
released,  or  discharged  in  any  other  way,  or  it  may  be  met  by  a  set- 
off. Fuller  v.  Pelton,  16  Ohio,  457.  A  tender  always  admits  the 
cause  of  action  as  stated,  and  the  amount  tendered  to  be  due. 
7  Taunt.  487  ;  4  Term,  194.  The  tender  must  always  be  kept 
good  ;  hence,  if  the  plaintiff  demands  the  sum  tendered,  the  party 
must  pay  it  at  once,  if  he  is  at  home,  or  as  soon  as  he  can  reason- 
ably go  there.  Town  v.  Trow,  24  Pick.  168;  8  N.  H.  509;  8  lb. 
367.  Where  the  tender  has  been  made  by  a  deceased  joint  con- 
tractor, the  answer  can  easily  be  so  framed  as  to  show  the  joint 
nature  of  the  contract,  and  then  a  tender  by  such  deceased  joint 
contractor. 

A  tender  to  be  valid  must  be  without  conditions,  absolute.  Thus, 
in  2  Greenl.  on  Ev.,  sec.  605,  "it  is  laid  down  that  it  must  also  ap- 
pear that  the  tender  was  absolute;  for,  if  it  be  coupled  with  a  con- 
dition, as,  for  example,  if  a  larger  sum  than  is  due  be  offered  and 
the  creditor  be  required  to  return  the  change,  or  if  the  sum  be 
offered  in  full  of  all  demands,  or  if  it  be  on  condition  that  the  cred- 
itor will  give  a  receipt,  or  release,  or  if  it  be  offered  by  way  of 
boon  with  a  denial  that  any  debt  is  due,  or  if  any  other  terms  be 
added,  which  the  acceptance  of  the  money  would  cause  the  other 
party  to  admit,  the  tender  is  not  good.  The  authorities  seem  to 
be  unanimous  to  the  same  effect."  Per  Bailey,  J.,  in  Shaw  v.  Sears, 
3  Kan.  242,  243. 

69.    ARBITRAMENT. 

And  the  said  C  D,  defendant,  now  .comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action,*  because  he  saith  that,  after  the  accruing 
of  the  cause  (or,  several  causes,  if  there  are  more  than  one  in  peti- 
tion^) of  action,  and  before  the  commencement  of  this  action,  on 


FORMS   OP   ANSWERS. 


G53 


the         day  of  ,  a.  d.  18     ,  the  said  plaintiff  and  defendant 

submitted  themselves  to  the  arbitration  of,  and  engaged  to  abide 
by  and  perform  the  award  and  determination  of  .  chosen  ai.d 

selected  by  the  mutual  consent  of  the  said  plaintiff  and  defendant, 
to  award  and  determine  of  and  concerning  all  and  every  cause  or 
causes  of  action  then  mutually  existing  and  subsisting  between  the 
said  plaintiff  and  defendant,  so  that  the  said  arbitrator,  (or,  arbi- 
trators, if  more  than  one,)  should  make  and  publish  his  award  and 
determination,  of  and  concerning  the  said  premises,  on  or  before 
the         day  of  ,  then  next  following  ;  and  the  safd  defendant 

saith  that  the  said  arbitrator  (or,  arbitrators,)  before  the  expira- ' 
tion  of  the  time  limited  for  making  said  award,  to  wit,  on  the 
day  of  ,  a.  o.  18     ,  took  upon  himself  the  burden  of  award- 

ing and  determining  in  the  said  premises,  and  the  said  arbitrator, 
(or,  arbitrators,)  upon  the  hearing  of  the  said  parties  to  said  arbi- 
tration, upon  the  premises  aforesaid,  found  that,  (here  set  out  the 
av:ard  literally,  or  according  to  its  legal  effect,)  and  the  said  defend- 
ant saith  that  the  said  plaintiff  afterward  had  due  and  legal  notice 
of  the  making  and  publication  of  the  said  award  and  determina- 
tion, and  thereupon  the  said  defendant  did,  on  his  part,  execute 
and  fulfill  all  that  he  was  by  said  award  required  and  bound  to  ex- 
ecute and  fulfill ;  and  this  he  is  ready  to  make  appear. 

If  the  award  has  not  been  executed,  then  the  last  averment  will 
be  omitted.  An  award  is  conclusive  as  to  all  matters  submitted. 
Fidler  v.  Cooper,  19  AVend.  285  ;  Emmet  r.  Hoyt,  17  lb.  -410  ;  Green 
v.  Danby,  12  Vt.  338.  A  mere  submission,  without  an  award,  is 
no  bar  to  an  action.  Gore  v.  Chadwick,  6  Dana,  477.  A  general 
submission,  and  an  award  under  it,  will  not  bar  an  action  on  a 
claim  not  laid  before  the  referees;  but  if  any  evidence  is  offered  as 
to  the  claim,  it  will  be  barred.     Warfield  y.  Holbrook,  20  Pick.  531. 

The  effect  of  an  award  was  well  stated  by  Gardner,  0.  J-,  in 
Bragill  v.  Isham,  12  N.  Y.  9;  2  Kern.  9.  He  says:  "The  award 
of  Stagg,  the  arbitrator,  if  valid,  and  insisted  upon  in  the  answer 
of  the  defendant,  would  have  constituted  a  legal  bar  to  this  action. 
There  is,  or  ought  to  be,  no  difference  in  the  effect  of  an  adjudica- 
tion, as  a  bar  to  a  subsequent  suit,  for  the  same  cause,  whether  it 
is  pronounced  by  judges  selected  by  the  parties,  or  appointed  by 
the  State.  In  either  case,  every  consideration  of  public  policy  re- 
quires that  after  the  parties  have  been  once  full}*  ami  fairly  heard, 
further  litigation  as  to  th<'  same  matters  should  cease, and  no  satis- 
factory reason  can  he  assigned  why  a  judgment,  as  an  act  by  the 


654  FORMS   OF   ANSWERS. 


law,  should  estop  the  parties,  and  an  award,  which  is  another  name 
for  a  judgment,  which  the  parties  have  expressly  stipulated  should 
be  final  as  to  the  subjects  submitted,  should  not  be  equally  con- 
clusive." 3  Caine,  166;  12  Johns.  310  ;  1  Hill,  44;  9  Johns.  37  ;  12 
Wend.  578;  1  Selclen,  457;  2  lb.  44;  Kyd  on  Awards,  chap.  8. 
The  case  in  2  Tyrwhitt,  113;  2  Cromp.  &  Jer.  47,  disproved  of. 

70.    ACCORD    AND    SATISFACTION. 

(Follow  ahove  to  *;)  because  he  saith  that,  after  the  said  sum  of 
money  so  demanded  in  said  petition  became  due,  and  before  the 
commencement  of  this  action,  to  wit,  on  the        day  of  ,  a.  d. 

18  ,  he,  the  said  defendant,  delivered  to  the  said  plaintiff,  (here 
state  the  money  or  property  delivered,)  of  great  value,  in  full  satis- 
faction and  discharge  of  the  said  sum  of  money,  so  by  the  said 
plaintiff  in  this  action  demanded,  and  which  said  (here  again  in- 
sert the  articles,)  he,  the  said  plaintiff,  then  accepted  and  received 
of  and  from  the  said  defendant,  in  full  satisfaction  and  discharge 
of  the  said  sum  of  money  in  said  petition  demanded ;  and  this  he 
is  ready  to  make  appear. 

71.    SATISFACTION   OF    A   LARGER   SUM   BY   A   LESS. 

(Folloiv  67  to  *;)  because  he  saith  that  the  said  defendant  was 
indebted  in  said  sum  so  demanded,  to  the  said  plaintiff,  and  which 
sum  was  payable  to  the  said  plaintiff  at  his  residence  at  ,  in 

the  county  of  ,  and  State  of  ;  and  the  said  defendant 

further  saith  that,  while  the  said  sum  was  so  due,  he,  the  said  de- 
fendant, paid  to  the  said  plaintiff,  at  the  Bank  of  America,  in  the 
city  of  New  York,  the  sum  of  $  ,  in  full  satisfaction  and  dis- 
charge of  said  sum  of  $  ,  so  demanded  by  the  said  plaintiff  in 
his  said  petition,  and  which  said  sum  of  $  he,  the  said  plaintiff, 
then  and  there  accepted  and  received  of  and  from  the  said  defend- 
ant, in  full  satisfaction  and  discharge  of  the  said  sum  of  money 
now,  by  the  said  plaintiff,  in  this  action  demanded ;  and  this  he  is 
ready  to  make  appear. 

For  this  form,  see  Harper  v.  Graham,  20  Ohio,  105,  where  it  was 
held  that  a  less  sum  might  be  a  satisfaction  of  a  larger,  if  it  is 
paid  at  a  different  place  from  that  where  the  party  is  bound  to  pay. 
So  it  would  seem  if  paid  by  a  surety,  or  by  a  friend  who  was  not 
bound  for  the  debt. 

Where  the  cause  of  action  is  on  a  written  contract,  the  language 
may  be  varied. 


FORMS   OP   ANSWERS.  655 


72.    TO   A   WRITTEN   CONTRACT. 

(Follow  67  to  *;)  because  he  saith  that  after  the  making  of  the 
promissory  note  (or,  notes,  bill,  or  bills  of  exchange,  contract,  or 
contracts,)  set  forth  in  said  petition,  and  before  the  commencement 
of  this  action,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  he,  the 

said  defendant,  delivered  to  the  said  plaintiff,  (here  state  the  thing 
delivered,  whether  note,  bill,  or  property,  as  the  case  may  be,)  in  full 
satisfaction  and  discharge  of  said  promissory  note,  (or  as  above,) 
and  of  all  sums  of  money  in  said  petition  demanded ,'  and  which 
he,  the  said  plaintiff,  then  accepted  and  received  of  the  said  defend- 
ant, in  full  satisfaction  and  discharge  of  the  said  promissory  note, 
(or,  notes,  etc.,)  and  of  all  sums  of  money  in  said  petition  de- 
manded ;  and  this  he  is  ready  to  verify. 

Where  the  note,  bill,  etc.,  of  a  third  person  is  given,  it  must  be 
specially  set  forth,  as  if  one  was  declaring  upon  it;  and  so  of  a 
bond. 

"Where  suit  is  brought  on  an  account,  the  defendant  may  plead 
that  the  account  was  settled,  and  a  note,  bill,  or  other  contract,  was 
given  and  received,  in  satisfaction  of  the  account.  Vide  form  in  3 
Chitty  PL  926  ;  5  Term,  513 ;  10  Mod.  37.  Under  our  code,  such 
a  plea  must  be  good,  since  the  plaintiff  must  declare  specially  in 
all  cases ;   and  hence,  if  he  has  a  note,  he  must  declare  on  it. 

73.    BILL   FOR   CONDITIONAL   PAYMENT   GIVEN  AND   LOST. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
said  petition  of  the  said  A  B,  plaintiff,  saith  that,  as  to  6  ,  parcel 
of  the  said  sum  of  8  ,  so  demanded  in  said  petition,  the  said 
plaintiff  ought  not  to  have  his  said  action  against  him;*  because 
he  saith  that,  after  the  accruing  of  the  cause  of  action  for  the  said 
sum  of  8  ,  and  before  the  commencement  of  this  suit,  the  said 
plaintiff  drew  on  the  said  defendant  a  bill  of  exchange  for  the  said 
sum  of  S  ,  payable  to  the  order  of  the  said  plaintiff  five  months 
after  date,  which  said  bill  the  said  defendant  then  accepted  and 
delivered  to  the  said  plaintiff;  and  the  said  plaintiff  took  and 
received  said  bill,  for  and  on  account  of  the  said  sum,  and  tho 
said  plaintiff  afterward,  [and  before  said  bill  became  duo  and 
payable,]  lost  the  said  hill  out  of  his  possession,  and  from  thenco 
hitherto  the  same  has  remained  so  lost,  and  the  said  plaintiff 
has  never  been  able  to  find  and  produce  said  bill  to  the  said  de- 


656  FORMS   OP   ANSWERS. 


fondant,  nor  know  where  tho  same  is;  and  this  the  said  defendant 
is  ready  to  make  appear. 

This  form,  without  the  words  in  brackets,  was  held  a  bar  to  an 
action  at  law.  The  receipt  of  the  hill  for  and  on  account  of  said 
sum  was  a  conditional  payment;  and  while  the  hill  remained  out- 
standing, the  conditional  payment  remained.  The  plaintiff  could 
rescind  it  only  by  delivering  up  the  bill.  Crowe  v.  Clay,  25  Eng. 
L.  &  Eq.  451.  In  Ohio,  it  has  been  held  that  a  suit  at  law  may  be 
maintained,  if  note  is  lost  after  it  is  due.  Thayer  v.  King,  15  Ohio, 
242.  The  party  paying  has  a  right  to  an  indemnity,  if  he  pays  the 
note  or  bill.  This  can  not  be  given  in  an  action  at  law.  JSTor  has 
the  code  altered  this  law;  the  petition  on  a  lost  note  must  set  forth 
that  fact,  and  offer  a  bond  of  indemnity.  Hence  it  becomes  a  case 
in  equity,  to  be  tried  by  the  court,  and  not  by  a  jury.  Nor  does 
it  seem  unreasonable  that  an  indemnity  should  be  given  in  all  cases 
of  a  lost  note,  without  regard  to  the  time  when  lost,  whether  before 
or  after  due.  The  finding  of  a  jury  in  the  action  that  the  note 
was  lost  when  overdue,  does  not  bind  the  holder;  but  if  the  plaint- 
iff should  falsely  prove  it  lost  after  due,  when  he  had  lost  it  before, 
and  it  had  passed  into  the  hands  of  a  bona  fide  holder,  the  maker 
would  have  to  pay  it  a  second  time.  The  first  judgment  would  be 
no  bar  to  the  second  suit.  The  holder,  therefore,  who  has  lost  the 
note  or  bill  ought  to  be  required  to  provide  against  all  possibility 
of  loss  to  the  payer. 

74.    PAYMENTS   BY    NOTE,  BILL,  ETC. 

(Follow  above  to;*)  because  ho  says  that,  after  the  creation  of 
the  said  debt  and  demand,  by  the  said  plaintiff  in  said  petition 
demanded,  and  before  the  commencement  of  this  suit,  the  said 
plaintiff  and  defendant  settled  an  account  by  and  between  them, 
of  and  concerning  the  said  matter  set  forth  in  said  petition,  and 
of  and  concerning  divers  other  matters  then  existing  by  and  be- 
tween said  parties ;  and  upon  said  acccounting,  the  said  defendant 
was  found  indebted  to  the  said  plaintiff  in  the  sum  of  $  ,  and 
for  which  sum  of  $  ,  he,  the  said  defendant,  then  made  and 
delivered  to  the  said  plaintiff  his  promissory  note  in  writing,  pay- 
able to  the  said  plaintiff,  or  order,  in  days  after  date  thereof; 
and  the  said  plaintiff  then  received  said  promissory  note  of  this 
defendant,  in  full  satisfaction  and  discharge  of  all  matters  em- 
braced within  said  accounting;  and  the  said  plaintiff  afterward, 
on  the        day  of  ,  a.  d.  18     ,  indorsed  said  promissory  note 


FORMS   OF   ANSWERS.  657 


to  one  ,  for  a  valuable  consideration ;  whereby  the  said  de- 

fendant became  liable,  and  still  is  liable,  to  pay  said  sum  of  8 
to  the  said  ,  (the  indorsee;)  and  this  he  is  ready  to  make  ap- 

pear. 

Vide  Steadman  v.  Goode,  1  Esp.  3  ;  1  Ld.  Eaym.  680 ;  1  Burr. 
9 ;  1  Esp.  230,  53,  167  ;  5  Term.  513,  516. 

75.    CONTRACT   DISCHARGED    BY   A   NEW   ONE,    TO   PAY   IN    A   PARTICU- 
LAR  WAY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that,  after  the  making  of  the  agreement  in  the  petition  of  the  said 
plaintiff  mentioned,  and  before  a  breach  thereof,  (or,  promissory 
note,  bond,  bill,  etc.,  and  before  the  same  became  payable,)  to  wit, 
on  the         day  of  ,  a.  d.  18     ,  the  said  defendant  agreed  with 

the  said  plaintiff,  that  he,  the  said  defendant,  should  and  would 
pay  the  said  sum  of  money  mentioned  in  the  said  agreement, 
(promissory  note,  bill,  etc.,)  to  the  said  plaintiff,  in  manner  follow- 
ing, that  is  to  say,  that  the  said  defendant  would  deliver,  (Jiere 
state  the  property  or  thing  to  be  delivered,  how  and  where,)  and  the 
said  defendant  saith  that  he  did,  according  to  said  agreement,  de- 
liver to  the  9aid  plaintiff  the  said  ,  in  payment  of  the  money 
named  in  Baid  first-named  agreement,  and  that  the  said  plaintiff 
did  then  accept  and  receive  the  same,  in  full  satisfaction  of  the 
said  sum  of  money,  so  due  and  owing  from  the  said  defendant  to 
the  said  plaintiff;  and  this  he  is  ready  to  make  appear. 

CD, 

By  ,  his  Attorney. 

This  was  held  a  good  bar  against  not  only  the  payee,  but  the 
indorsee  of  a  note,  in  Ward  v.  Walton,  4  Ind.  75.  If  the  suit  is 
by  an  indorsee,  the  plea  should  aver  that,  before  breach,  and  with- 
out notice  of  any  assignment  to  the  said  plaintiff,  he  make  tho 
new  agreemenl  and  payment,  '-it  is,  no  donbt,  competent,"  says 
the  court,  ■  for  parties,  before  breach,  to  enter  into  a  verbal  con- 
tract providing  for  its  discharge  by  the  delivery  of  property,  or 
in  any  other  mode  agreed  upon  between  them.''  H>.  77.  In 
Ethodi  •  '-.  Thomas,  2  End.  638,  it  was  held  that  parties  to  a  writ- 
ten contract.  in,t  under  seal,  may,  after  its  execution,  dissolve,  or 
\  OL.  I—  J  2 


658  FORMS   OP   ANSWERS. 


waive,  or  discharge,  or  qualify  the  contract,  or  any  part  of  the 
same,  by  a  new  verbal  contract,  and  such  waiving,  etc.,  if  made 
before  breach,  will  be  a  good  defense  in  a  suit  on  the  contract. 
The  new  contract  is  a  bar  without  execution,  if  made  on  a  suf- 
ficient consideration.  As  where  the  payee  agreed  that,  if  the 
payer  would  procure  logs  and  saw  a  certain  amount  of  lumber,  ho 
would  receive  the  same  in  payment,  and  the  defendant  averred 
that  he  did  proceed,  and  procure  logs,  and  had  sawed  and  de- 
livered a  part,  and  was  proceeding  to  saw  and  preparing  to  deliver 
the  residue.  This  was  the  case  presented  in  AVard  v.  Walton, 
sitj)rct. 

76.    PAYMENT   IN   CARPENTER   WORK   ON   A   NOTE   AFTER   DUE. 

(Folloiv  last  form  to  the  word  "because,"  and  then  proceed:)  be- 
cause he  saith  that  after  the  said  promissory  note  became  payable, 
and  before  the  commencement  of  this  suit,  to  wit,  on  the  day 
of  ,  a.  d.  18     ,  the  said  plaintiff  agreed  to  receive,  and  the 

said  defendant  agreed  to  give  to  the  said  plaintiff,  his  work,  as  a 
carpenter,  to  the  amount  due  and  payable  on  the  said  promissory 
note ;  and  the  said  defendant  avers  that  he  did  afterward,  accord- 
ing to  the  said  agreement,  do  and  perform  for  the  said  plaintiff 
carpenter  work  to  the  full  amount  due  and  payable  on  the  said 
promissory  note ;  and  this  he  is  ready  to  make  appear. 

CD, 

By  ,  his  Attorney. 

This  plea  was  held  good  in  the  case  of  Louden  v.  Birt,  4  Ind. 
566,  overruling  the  dictum — in  Sinard  v.  Patterson,  3  Blackf.  353 — 
that  a  plea  of  payment  could  not  be  supported  unless  the  payment 
had  been  made  in  money  alone.  "Payment,"  says  the  court, 
"  may  be  made  in  anything  that  the  creditor  will  accept  as  pay- 
ment. And  under  a  general  plea  of  payment,  payment  in  any- 
thing that  has  been  accepted,  or  received  as  payment,  may  be 
proved.  And  in  these  cases,  it  is  a  question  for  the  juiy,  whether 
what  may  have  been  given  and  received  was  a  payment  or  not,  in 
the  particular  case."  2  Swan's  Pr.  702 ;  Chitty  on  Contr.  750 ; 
Moore  v.  Studden  et  al.,  Wright,  88 ;  Willard  v.  Germer,  1  Sandf. 
S.  C.  50.  The  allegation  that  a  debt  had  been  fully  paid,  in  a 
manner  stipulated  in  a  previous  agreement  between  the  parties, 
would  seem  to  imply  an  acceptance  of  the  thing  delivered  or  fur- 
nished in  payment.  Where  the  agreement  is  specific  as  to  the 
thing  to  be  done  or  delivered,  it  may  be  well  enough  to  set  it  forth, 


FORMS   OF   ANSWERS.  G59 


and  aver  that  it  was  accepted  as  payment;  but  where  the  agree- 
ment is  general — that  it  shall  be  paid  in  lumber,  or  other  property, 
or  in  work,  without  specifying  the  quantity — there  a  plea  of  this 
character  will  be  sufficient,  and  indeed  will  state  the  whole  agree- 
ment. 

Where  the  payment  is  made  to  the  payee,  and  a  suit  is  brought 
by  an  indorsee  after  due,  the  plea  is  still  good,  by  averring  the 
contract  with  the  payee,  and  before  assignment  to  the  plaintiff; 
because  the  note  being  paid,  ceased  to  be  negotiable,  unless  nego- 
tiated before  due  to  a  bona  fide  holder  for  value.  The  note,  in  the 
case  of  Louden  v.  Birt,  had  been  assigned,  and  the  suit  was  in  the 
name  of  the  assignee. 

77.    ANSWER  THAT  PLAINTIFF  HAD  NOT  OFFERED  TO  CONVEY  LAND,  TO 
BE  CONVEYED  WHEN  FIRST  OF  SEVERAL  NOTES  BECAME  DUE. 

{Follow  preceding  form  to  the  word  -'because,"  then  proceed:)  be- 
cause he  saith  that  the  sole  consideration  of  the  said  three  several 
writings  obligatory,  in  the  said  petition  mentioned,  was  and  is  the 
sale  of  a  certain  piece  or  parcel  of  land,  situate  in  the  county  of 
,  and  State  of  ,  and  known  and  described  as,  (here  de- 

scribe the  land  sold;)  and  the  said  defendant  further  saith  that,  at 
the  time  of  making  said  several  promissory  notes,  the  said  plaintiff 
agreed  to  convey  the  said  premises  to  the  said  defendant  by  deed 
of  general  warranty,  at  the  time  when  the  said  sum  of  money, 
named  in  the  said  writing  obligatory,  described  in  the  first  count 
of  the  said  plaintiff's  petition,  should  and  did  become  due  and  pay- 
able, to  wit,  on  the  said  day  of  ,  a.  d.  18  ;  and  the  said 
defendant  also  then  agreed,  on  the  delivery  of  the  said  deed  of  con- 
veyance, to  pay  to  the  said  plaintiff  the  said  sum  of  $  .  men- 
tioned in  the  said  writing  obligator}',  and  to  execute  and  deliver 
to  ih"  said  plaintiff  a  mortgage  on  the  said  premises,  to  secure  the 
payment  of  the  sums  of  money  mentioned  in  the  two  several  writ- 
ings obligatory,  described  in  the  second  and  third  counts  of  the 
said  plaintiff's  petition;  and  the  said  defendant  avers  that  he  has 
been  ready  and  willing  to  pay  the  tirst-named  sum  of  money,  and 
execute  and  deliver  said  mortgage,  on  the  delivery  by  tin-  said 
plaintiff  of  the  said  deed  of  conveyance;  yet  the  said  plaintiff  did 
not,  nor  would  he.  on  the  said  day  of  ,  A.  D.  18  ,  nor  at 
any  time  Bince,  offer  to  convey  the  said  premises  to  the  said  defend- 
ant, on  the  payment  of  the  sum  mentioned  in  the  said  writing 
obligator)-,  in  the  -aid  first  count  described,  and  the  execution  of  a 


660  FORMS   OF   ANSWERS. 


mortgage  by  the  said  defendant  as  aforesaid,  to  secure  the  sums  of 
money  mentioned  in  the  other  writings  obligatory,  in  plaintiff's 
second  and  third  counts  described;  and  this  he  is  ready  to  make 
appear. 

C  D, 
By  ,  his  Attorney. 

This  plea  was  held  a  good  bar  to  an  action  on  the  three  notes 
mentioned,  brought  after  they  all  became  due,  in  the  case  of  Ellis 
v.  Hubbard,  4  Ind.  206.  By  the  terms  of  the  agreement,  as  set  out 
in  the  plea,  says  the  court,  the  payment  of  the  first  note,  and  the 
execution  of  a  mortgage  to  secure  the  other  two,  on  the  part  of  the 
vendee,  and  the  execution  of  the  deed  by  the  vendor,  were  depend- 
ent acts.  Either  party  suing  for  a  breach  of  the  contract,  in  such 
a  case,  in  order  to  entitle  himself  to  recover,  must  show  a  perform- 
ance, or  a  conditional  offer  to  perform  whatever  was  to  be  done  on 
his  part.  If  Ellis  were  suing  to  compel  Hubbard  to  execute  the 
conveyance,  it  would  then  be  incumbent  on  him  to  aver  that  he  had 
paid  or  tendered  the  money  and  mortgage ;  but  standing  in  the 
position  of  a  defendant,  it  was  only  necessary  for  him  to  show,  in 
order  to  defeat  the  suit,  that  the  plaintiff  had  failed  to  perform  the 
part  of  the  contract  incumbent  upon  him  to  perform,  according  to 
the  terms  and  conditions  of  the  agreement.  This  view  is  fully 
sustained  by  later  cases.  The  case  of  McCulloch  v.  Dawson,  1  Ind. 
413,  and  the  authorities  there  cited,  abundantly  fortify  this  asser- 
tion, and  sustain  the  court  in  overruling  a  different  decision  on  the 
same  point,  in  Burrows  v.  Yount,  6  Blackf.  458 ;  Ireland  v.  Chauncey 
et  al,  4  Ind.  224;  Best  v.  Ellsworth,  4  lb.  261;  Mix  v.  Smith,  4 
lb.  499. 

78.    TO  SPECIAL  CONTRACT  TO  DELIVER  CORN — ANSWER  THAT   PLAINT- 
IFF AGREED  TO  FURNISH  A  THRESHING  MACHINE,  AND  DID  NOT. 

(Follow  the  former  forms  to  the  word  "because,"  then  proceed:) 
because  he  saith  that,  at  the  time  of  the  making  of  the  agreement 
mentioned  in  the  petition  of  the  said  plaintiffs,  the  said  plaintiffs 
agreed,  in  writing,  with  the  said  defendant  that,  in  consideration 
that  he  would  deliver  to  the  said  plaintiffs,  at  their  warehouse  in 
,  the  fifteen  hundred  bushels  of  shelled  corn  above  men- 
tioned, they,  the  said  plaintiffs,  would  pay  the  said  defendant 
twenty  cents  a  bushel  therefor,  and  would  furnish  to  the  said  de- 
fendant a  thresher  to  thresh  said  corn  for  one  cent  a  bushel ;  and 


FORMS   OF    ANSWERS.  G61 


the  said  defendant  saith  that  the  said  plaintiffs  failed  and  refused 
to  furnish  said  thresher,  though  the  said  defendant  did,  on  the 
da}-  of  ,  A.  d.  18      ,  request  the  said  plaintiffs   so   to   do ; 

whereby  the  said  defendant  was  disabled  from  performing  his  con- 
tract aforesaid ;  and  this  he  is  ready  to  make  appear. 

C  D, 
By  ,  his  Attorney. 

This  was  held  a  good  plea  in  bar  to  an  action  on  a  contract, 
whereby  the  defendant  had  agreed  to  deliver  fifteen  hundred 
bushels  of  shelled  corn  at  the  warehouse  of  plaintiffs,  in  Lafayette, 
on  the  1st  day  of  October  next  thereafter,  and  the  plaintiffs  to  pay 
twenty  cents  per  bushel.  "  Taking  the  allegations  in  the  plea  to 
be  true  upon  the  demurrer."  says  the  court,  "the  furnishing  of  the 
thresher  is  shown  to  have  been  a  part  of  the  consideration  of  the 
sale  of  the  corn,  and  a  condition  precedent  to  the  delivery.  The- 
failure  of  the  plaintiffs  to  perform  that  condition  excused  the  defend- 
ant from  performing  his  agreement,  and  indeed  probably  disabled 
him  to  make  performance.  Bembridge  et  al.  v.  Stoddard,  4  Iud. 
587.     Vide  also  Coe  v.  Smith,  1  Ind.  2G7. 

79.    PLEADING   TO    A   PETITION    AVERRING    A    GENERAL   PERFORMANCE 
OF    CONDITIONS   PRECEDENT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him  ;  because  he  saith  that  he 
agreed  with  the  said  plaintiff  to  buy  the  Baid  wool,  in  the  petition 
mentioned,  for  the  purpose  of  reselling  the  same  in  the  way  of  his, 
the  said  defendant's,  trade  and  business  of  wool-dealer,  and  thereby 
acquiring  gains  and  profits ;  and  that  wool  is  an  article  that  fluc- 
tuates  greatly  in  price  in  the  market,  and  that  the  said  defendant 
could  only  resell  the  said  wool  as  aforesaid,  when,  and  not  before, 
he,  the  said  defendant,  had  notice  of  the  same  being  shipped,  and 
when,  and  not  before,  the  name  of  I  he  vessel  in  which  it  was  so 
-hipped  had  been  declared,  according  to  the  said  contract  in  the 
said  petition  mentioned;  of  all  which  premises  the  said  plaintiff, at 
i  he  time  of  tic-  making  of  the  said  agreement,  had  notice;  and  the 
said  defendant  further  saith  thai,  although  the  said  plaintiff  had 

Mich  notice,  yet  he.  the  said  plaintiff,  did  not  declare  to  the  said 
defendant  the  name  of  the  vessel  in  which  the  said  wool  was 
shipped,  at  or  within    the   time   at   or  within  which    he  \va-.  by  the 

said  agreem  m.  hound  to  declare,  that  is  to  say,  as  soon  as  such 


GG2  FORMS   OF   ANSWERS. 

■wool  was  so  shipped  ;  but  omitted  so  to  do,  and  delayed  and  omitted 
so  to  declare  the  name  of  the  said  vessel  in  which  the  said  wool 
was  so  shipped,  or  to  give  the  said  defendant  any  notice  of  the 
same  being  so  shipped,  for  a  long  and  unreasonable  time  after  the 
same  had  been  so  shipped;  and  the  said  defendant  had  not  notice 
of  the  shipment  of  the  said  wool,  or  of  the  name  of  the  vessel  in 
which  the  same  had  been  so  shipped,  until  after  the  expiration  of 
a  long  and  unreasonable  time  after  the  same  had  been  so  shipped, 
and  after  the  said  plaintiff  was  bound  to,  and  ought  to  have  given 
and  declared  the  same,  and  ought  and  could  have  done  so ;  and  the 
said  defendant  further  saith  that,  between  the  time  that  the  name 
of  the  said  vessel  ought  to  have  been  declared,  according  to  the 
said  agreement,  in  said  petition  mentioned,  and  the  time  when  it 
was  first  declared  to  the  said  defendant,  or  when  he  first  had  notice 
of  the  sailing  of  the  said  ship,  with  the  said  wool  on  board 
thereof,  the  price  of  wool  in  the  market  had  greatly  fallen,  and  the 
said  wool  thence  continually  remained  so  fallen  in  price,  and  the 
same,  when  the  name  of  the  said  vessel  was  first  declared,  and  when 
the  said  defendant  first  had  notice  or  knowledge  of  the  same  having 
been  so  shipped,  would  sell  or  could  be  sold  only  for  a  much  less 
sum  of  money  than  it  would  have  done  at  the  time  when  the  said 
plaintiff  ought  to  and  could  have  declared  the  name  of  the  said 
vessel,  or  given  the  said  defendant  such  notice  as  aforesaid;  where- 
fore the  said  defendant  did  not,  nor  would  accept  or  pay  for  the 
said  wool  in  the  said  petition  mentioned  ;  and  this  the  said  defend- 
ant is  ready  to  make  appear. 

C  D, 

By  E  F,  his  Attorney. 

This  plea  is  copied  from  the  case  of  Graves  v.  Legg,  25  Law  & 
Eq.  5G2,  where  it  was  held  a  good  bar;  since  the  naming  of  the 
vessel  was  a  condition  precedent,  according  to  the  agreement  as  set 
forth  in  the  declaration  and  plea.  The  declaration  averred  a  gen- 
eral performance  of  all  conditions  precedent.  The  plea  sets  forth 
one  of  the  conditions,  and  says  that  the  plaintiff  did  not  perform 
that.  This  is  the  manner  of  pleading  adopted  in  England,  under 
a  statute,  which  permits  a  general  averment  of  the  performance  of 
conditions  precedent  by  the  plaintiff.  And  it  would  seem  that  the 
same  rule  ought  to  be  adopted  in  the  construction  of  the  code. 
The  petition  avers  generally  a  performance.  An  answer  denying 
this  would  be  bad,  for  either  putting  nothing  in  issue,  or  in  putting 
too  much  in  issue  ;  as  it  specifies  no  particular  condition,  the  per- 


FORMS   OF   ANSWERS.  663 


formance  of  "which  is  denied.  Hence,  the  answer  ought  to  set  out 
the  particular  condition,  as  the  above  plea  does,  and  then  aver  that 
the  plaintiff  did  not  perform  that  particular  one.  The  case  of 
Glenn  v.  Leith.  22  L.  &  Eq.  489,  is  a  good  illustration  of  the  man- 
ner of  pleading  under  this  practice  of  averring  generally  the  per- 
formance of  conditions  precedent.  That  was  an  action  on  a  build- 
ing contract,  by  the  builder  and  against  the  employer.  The  decla- 
ration averred  that  the  plaintiff  had  done  all  to  entitle  him  to  have 
certain  things  done  and  money  paid.  Numerous  pleas  were  inter- 
posed, among  which  were  the  following,  held  by  the  court  to  be 
good: 

80.     PLEA    OF    CONDITION   PRECEDENT    TO    AN   ACTION   ON   A   BUILDING 

CONTRACT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him,  because  he  saith  that  the 
said  work,  in  said  petition  mentioned,  was  not  completed  in  a  good 
and  workmanlike  manner,  to  the  satisfaction  of  the  said  architect, 
on  or  before  the  15th  day  of  October,  a.  d.  1851 ;  but  on  the  con- 
trary thereof,  the  said  work,  on  the  said  15th  day  of  October, 
and  from  thence  more  than  fourteen  days  from  that  period,  and 
from  thence  up  to  the  commencement  of  this  action  was,  and  still 
is,  wholly  incomplete  and  unfinished,  contrary  to  the  said  agree- 
ment ;  and  this  he  is  ready  to  make  appear. 

81.    ANOTHER    IN    SAME    CASE. 

(Begin  as  in  last:)  because  he  saith  that  all  things  necessary  to 
entitle  the  said  plaintiff  to  have  the  value  and  amounts  in  the  said 
count  mentioned,  or  any  of  them,  ascertained,  determined, 
and  fixed  by  the  said  architect  of  the  said  defendant,  and  to  have 
the  said  balance,  less  ten  per  cent.,  paid  to  him,  had  not  happened 
at  the  time  of  the  commencement  of  this  action;  but  on  the  con- 
trary thereof,  no  certificate  from  the  said  architect,  that  the  said 
work,  in  the  -aid  first  count  mentioned,  had  been  completed  to  his 
satisfaction,  had  been  obtained  by  the  said  plaintiff  at  any  time 
■  the  commencement  of*  this  suit;  and  this  he  is  ready  to 
make  app<  ar. 

Tie  show  what  the  English  practice  is;  and  if  is  founded 

in  principle  and  ought  to  he  followed  in  Ohio.      The  general  form 


6G-i  FORMS   OP    ANSWERS. 


of  averring  performance  will  bo  resorted  to  in  petitions  on  policies 
of  insurance,  to  which  so  many  conditions  are  necessarily  attached. 
The  answer  in  such  cases  will  necessarily  assume  somewhat  the 
following  form: 

82.      ANSWER    OP     NON-PERFORMANCE    OP   A    CONDITION    IN   A   POLICY 

OP    INSURANCE. 

(Follow  the  above  to  the  icord  "because,"  then  proceed:)  because 
lie  saith  that,  by  one  of  the  conditions  attached  to,  and  consti- 
tuting a  part  of  the  said  policy  of  insurance,  in  said  petition  men- 
tioned, it  was  provided  that  all  persons  insured  by  this  company, 
and  sustaining  a  loss  or  damage  by  fire,  are  forthwith  to  give 
notice  thereof  to  the  said  company,  or  its  agent,  and,  as  soon  after 
as  possible,  to  deliver  in  a  particular  account  of  such  loss  or  dam- 
age,  signed  with  their  own  hands,  and  verified  by  their  oath  or 
affirmation ;  they  shall  also  declare  on  oath  whether  any,  and  what 
other,  insui'ance  has  been  made  on  the  same  property,  what  was 
the  whole  value  of  the  subject  insured,  what  was  their  intei-est 
therein,  in  what  general  manner  (as  to  trade,  manufactory,  mer- 
chandise, or  otherwise^  the  building  insured,  or  containing  the-subjeet 
insured,  and  the  several  parts  thereof,  were  occupied  at  the  time 
of  the  loss,  and  who  were  the  occupants  of  such  building ;  and 
when  and  how  the  fire  originated,  so  far  as  they  know  or  believe, 
and  procure  a  certificate,  under  the  hand  of  a  magistrate  or  notary 
public,  (most  contiguous  to  the  place  of  fire  and  not  concerned  in 
the  loss,  as  a  creditor  or  otherwise,  or  related  to  the  insured  as  suf- 
ferers,) that  he  is  acquainted  with  the  character  and  circumstances 
of  the  person  or  persons  insured,  and  has  made  diligent  inquiry 
into  the  facts  set  forth  in  their  statement,  and  knows,  or  verily  be- 
lieves, that  he,  she,  or  they,  really,  and  by  misfortune,  and  with- 
out fraud  or  evil  practice,  hath  or  have  sustained,  by  such  fire,  loss, 
or  damage  to  the  amount  therein  mentioned ;  and  the  said  defend- 
ant saith  that  the  said  plaintiff  did  not,  as  soon  as  he  possibly  could 
after  the  happening  of  said  loss,  or  within  a  reasonable  time  there- 
after, make  out  and  deliver  in  to  the  said  company,  or  to  its  agent, 
a  particular  account  of  such  loss  or  damage,  in  manner  and  form 
as  is  in  said  condition  required,  (or,  that  the  said  plaintiff  did  not 
procure  the  certificate  of  a  magistrate  or  notary  public  to  the  state- 
ment or  account  of  his  loss  or  damage,  sustained  by  the  said 
plaintiff  by  the  said  fire,  as  the  said  plaintiff  was,  by  the  said  con- 
dition, bound  to  do,  within  a  reasonable  time  after  the  happening 


FORMS    OF    ANSWERS.  665 


of  the  said  loss  or  damage,  as  is  in  said  petition  averred ;)  and  this 
the  said  defendant  is  ready  to  make  appear. 

CD, 

By  ,  his  Attorney. 

A  failure  to  procure  this  certificate  is  a  bar  to  the  right  to  re- 
cover; but  where  the  party  has  once  submitted  to  be  examined, 
that  is  a  compliance  with  the  condition,  though  he  refuse  to  sub- 
mit to  a  second  examination.  Moore  y.  Protection  Insurance  Co., 
20  Maine,  97.  So,  an  omission  to  state  the  true  condition  of  the 
property  may  be  set  up  as  a  defense.  Brown  v.  Williams,  28 
Maine,  252.  The  above  form  will  be  sufficient  to  show  how  such 
defenses  can  be  set  up  under  the  code,  and  the  practice  allowed  by 
it,  of  averring  a  general  performance  of  all  conditions  precedent. 

So  where  the  petition  is  for  work  and  materials,  it  is  presumed 
that  an  answer  would  be  good,  which  should  set  up  that  the  work 
was  done  and  materials  furnished  under  a  special  contract,  by 
which  certain  conditions  were  provided  ;  and  that  the  plaintiff  had 
not  complied  with  some  one  of  them.  This  seems  to  be  admitted 
as  good  pleading  in  Glenn  y.  Leith,  supra.  It  shows  a  fact,  which, 
being  admitted,  defeats  the  plaintiff's  right  to  recover. 

These  conditions  are  as  numerous  as  the  contracts  that  men 
make;  hence  it  is  impossible  to  give  forms  for  all  possible  condi- 
tions. All  that  can  be  done  is  to  furnish  the  general  outline  of  an 
answer,  which  shall  illustrate  the  principle  of  pleading  in  such 
cases,  having  the  condition  to  be  inserted  and  negatived  by  the 
pleader,  according  to  the  peculiar  character  of  the  condition 
presented  in  each  particular  case. 

83.    AN   ACCEPTANCE    OF   A    THIRD   PARTY    TAKEN. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saitb  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him,  because  he  saith  that,  after 
the  accruing  of  the  cause  of  action  in  the  said  petition  mentioned, 

and  before  the  commencemeni  of  this  action,  to  wit,  on  the  day 
,'a.d.  18  ,  the  said  plaintiff  made  his  certain  bill  of  ex- 
change in  writing,  and  directed  it  to  William  Bush,  and  thereby 
required  the  said  William  Bush  to  pay  to  the  order  of  the  said 
plaintiff  the  sum  of  I  ,  months  after  date;  and  the  said  William 
Bush  then  on  sight  accepted  the  said  hill  of  exchange,  and  delivered 
the  said  bill  of  exchange  so  accepted,  to  the  said  plaintiff  for  and 
on  account  of  the  said  sum  oi  ,  the  debt  in  the  said  p<  tition 


6G6  FORMS   OP   ANSWERS. 


mentioned;  and  the  said  plaintiff  then  received  the  said  bill  of  ex- 
change  from  the  said  William  Bush,  for  and  on  such  account,  and 
thai  afterward  the  said  plaintiff  indorsed  and  delivered  the  said 
bill  of  exchange  to  one  W.  F.  Grey,  who  then  became,  and  was,  be- 
fore and  at  the  time  of  the  commencement  of  this  action,  the  holder 
thereof;  and  this  the  said  defendant  is  ready  to  make  appear. 

This  plea  was  held  a  bar  to  an  action  for  the  goods  sold  and 
delivered.  This  was  held  a  conditional  payment,  though  given  by 
a  stranger.  Belshaw  v.  Bush,  14  Eng.  Law  &  Eq.  269.  The  case 
is  a  very  elaborate  one,  and  well  worth  a  perusal.  The  bill  was 
outstanding  in  the  hands  of  the  plaintiff's  indorsee,  when  the  suit 
was  brought.  Griffiths  v.  Owens,  13  Mee.  &  Welsh.  58;  James  v. 
Williams,  13  lb.  828.  If  the  bill  had  been  in  the  hands  of  the 
plaintiff,  it  would  have  been  no  bar.  Hawley  v.  Foote,  19  Wend. 
516  ;  Sard  v.  Ehocles,  1  Mee.  &  Welsh.  153.  Where  a  note  is  taken 
in  payment,  there  it  is  a  bar.  The  following  form  is  taken  from 
Sard  v.  Bhodes.  The  action  was  against  the  acceptor  of  a  bill 
drawn  by  one  George  Farish.  To  that  the  following  plea  was 
interposed : 

84.    NEW    SECURITY    TAKEN. 

And  the  said  C  JJ,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him  ;  because  he  saith  that  he, 
the  said  defendant,  was,  in  accepting  said  bill  of  exchange,  the 
surety  and  accommodation  acceptor  of  the  said  George  Parish ; 
and  that,  after  the  said  bill  of  exchange  became  due,  and  before 
the  commencement  of  this  suit,  the  said  George  Parish  made  his 
certain  promissory  note  in  writing,  and  thereby  promised  to  pay 
to  the  said  plaintiff,  or  order,  the  sum  of  8  ,  in  six  weeks  after 
date,  and  then  delivered  the  said  note  to  the  said  plaintiff,  in  full 
satisfaction  and  discharge  of  the  said  bill,  and  the  said  cause  of 
action  in  the  said  petition  mentioned ;  and  the  said  plaintiff  then 
accented  and  received  the  said  note,  in  full  satisfaction  and  dis- 
charge of  the  said  bill  of  exchange,  and  the  cause  of  action  in  said 
petition  mentioned  ;  and  this  the  said  defendant  is  ready  to  make 
appear 

This  plea  was  held  good,  notwithstanding  a  replication  that  the 
note  had  not  been  paid.  It  is  averred  to  have  been  accepted  in 
full  satisfaction  and  discharge  of  the  bill.  The  plaintiff,  therefore, 
takes  it  for  better  or  worse.     This  is  not  like  the  case  of  Kearslake 


FORMS   OF   ANSWERS.  667 


v.  Morgan,  5  Term,  513,  where  it  was  admitted  that  the  non-pay- 
ment of  the  note  when  due,  there  being  no  laches  on  the  part  of 
the  plaintiff,  would  revive  the  remedy  on  the  original  debt;  for 
there  it  was  averred  that  the  indorsement  was  for  and  on  account 
of  the  original  debt.  If  it  had  been  averred  that  the  note  was 
given  for  and  on  account  of  the  bill,  it  might  have  been  different. 
Per  Parke,  B.  In  the  case  supposed,  the  plaintiff  must  have  shown 
the  note  to  be  in  his  hands,  before  he  could  have  sued  on  the 
original  debt.  The  acceptance  of  the  note  of  a  third  person,  in 
satisfaction  and  discharge,  is  a  bar  to  an  action  on  the  original 
liability.  Frisbie  v.  Larned,  21  Wend.  451 ;  Peter  v.  Beverly,  10 
Peters,  534,  568.  But  a  note  received  to  be  in  full  when  paid,  is 
not  a  bar,  unless  it  is  paid.  3  Johns.  Cas.  71 ;  1  Dallas,  261 ;  1  Penn. 
375,  381. 

85.    WANT   OF   CONSIDERATION    TO   A   NOTE, 

And  now  comes  the  said  C  D,  defendant,  and  says  that  said 
plaintiff  ought  not  to  have  his  aforesaid  action  thereof  against  him, 
because  he  saith  that  one  E  F,  before  and  at  the  time  of  his  decease, 
to  wit,  on  the         day  of  ,  a.  d.  18     ,  was  indebted  to  the 

said  plaintiff  in  a  certain  sum  of  money,  to  wit,  in  the  said  sum  of 
$  ,  for  the  price  and  value  of  goods  by  the  plaintiff  before  that 
time  sold  and  delivered  to  the  said  E  F,  and  which  sum  was  due 
and  owing  to  the  said  plaintiff  at  the  time  of  the  making  of  the 
promissory  note  in  the  petition  of  the  said  plaintiff  mentioned ; 
and  that  the  said  plaintiff,  after  the  death  of  the  said  E  F,  and 
before  the  making  of  said  promissory  note,  to  wit,  on  the  day 
of  ,  a.  D.  18      ,  applied  to  this  defendant  for  payment  thereof; 

whereupon,  in  compliance  with  said  request,  the  said  defendant, 
after  the  death  of  said  E  F,  for  and  in  respect  of  the  said  debt  so 
then  remaining  due  to  the  said  plaintiff  as  aforesaid,  and  for  no 
other  consideration  whatever,  then  made  and  delivered  the  said 
note  to  the  plaintiff;  and  the  defendant  further  saith  that  the  said 
J-]  F  «lied  intestate,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  and 

that  at,  the  time  of  the  making  and  delivery  of  the  said  note  to 
the  plaintiff  as  aforesaid,  no  administration  had  been  granted  of 
the  estate  and  effects  of  the  said  E  P,  nor  was  there  at  that  time 
any  executor  or  executrix  of  the  estate  and  effects  of  said  E3  F, 
dot  was  there  at  thai   time  any  person  Liable  for  the  said  debl  so 

remaining  due  to  the  said  plaintiff  as  aforesaid,  and  said  defendant 

there  never  was  any  consideration  for  the  said  note  excepl  as 
aforesaid  ;  and  this  he  is  ready  to  make  appear. 

A  C,  Attorney  for  Defendant. 


COS  FORMS   OP   ANSWERS. 


This  plea  was  held  good  in  the  case  of  Nelson  v.  Serle,  4  M.  & 
W.  7(.»5.  Vide  also  Jones  v.  Ashburnham,  4  East,  455;  Eidout  v 
Bristow,  1  Cromp.  &  J.  231 ;  Popplewell  v.  Wilson,  1  Strange,  264 

86.    AN    ACTION    FOR    FREIGHT — A   RILL    GIVEN    AND    NOT    PRESENTED 

IN    TIME. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  said 
plaintiff  ought  not  to  have  and  maintain  his  aforesaid  action 
thereof  against  him,  because  he  saith  that  as  to  the  said  sum  of 
$         ,  one  E  F,  of  ,  in  the  State  of  ,  was  the  consignee 

of  the  said  merchandise  and  goods  shipped  on  the  vessel  of  said 
plaintiff  to  the  said  E  F,  at  ,  mentioned  in  the  petition  of 

plaintiff;  and  that  on  the         day  of  ,  A.  d.  18     ,  the  said  E  F 

delivered  to  the  said  plaintiff,  for  and   on  account  of  the   said 
freight,  and  in  payment  of  the  said  sum  of  $         ,  and  the  said 
plaintiff  then  accepted,  a  bill  of  exchange,  dated  on  the        day  of 
,  a.  d.  18     ,  drawn  by  said  E  F  upon  S  T,  of  ,  in  , 

payable  ninety  days  after  date  thereof,  (or,  after  sight,)  and  that 
said  plaintiff  kept  the  said  bill  of  exchange  for  an  unreasonable 
time  before  it  was  presented  for  acceptance  to  the  said  S  T,  the 
drawee,  to  wit,  from  the         day  of  ,  A.  D.  18     ,  until  the 

day  of  ,  a.  d.  18     ,  and  that  in  consequence  thereof,  S  T,  who 

would  have  paid  said  bill,  if  it  had  been  presented  for  acceptance 
within  a  reasonable  time,  when  it  became  due,  was  unable  to  pay 
it,  and  the  same  was  dishonored,  and  remains  unpaid ;  and  this 
the  defendant  is  ready  to  make  appear. 

HAT,  Attorney  for  Defendant. 

This  plea  is  found  in  the  case  of  Straker  v.  Graham,  4  M.  &  "W. 
721.  The  bill  was  drawn  in  Newfoundland,  on  August  12,  1837, 
and  presented  for  acceptance  on  November  16th  following,  and 
became  duo  February  17,  1838.  The  bill  might  have  been  pre- 
sented, if  sent  by  mail,  in  about  six  weeks.  The  court  held  that 
there  was  an  unreasonable  delay  in  presenting  it  for  acceptance. 
The  drawees  did  not  suspend  until  January  30th.*  If  a  party  puts 
a  bill,  payable  after  sight,  into  general  circulation,  he  is  no  longer 
responsible  for  the  delay  that  may  occur  in  presenting  it  to  the 
drawee;  but  it  is  otherwise  when  the  holder  retains  it  in  his  own 
possession.  Muilman  v.  D'Eguino,  2  II.  Bl.  565 ;  Mcllish  v.  Bow- 
don,  9  Bing.  416  ;  2  M.  &  Scott,  570  ;  23  Eng.  C.  L.  This  form  can 
easily  be  varied  to  suit  any  case  where  a  bill  or  note  has  been 
given  for  a  precedent  debt,  and  not  collected  through  neglect  of 


FORMS   OP   ANSWERS.  669 


the  holder.  This  action  was  brought  on  the  original  consideration 
or  debt,  on  the  ground  that  a  bill  or  note  not  paid  does  not  ex- 
tinguish the  original  debt.  It  does  not,  if  due  diligence  is  used  to 
collect  the  bill  or  note. 

87.    ASSIGNMENT    OP   THE    CLAIM    SUED    ON. 

And  now  comes  the  said  C  D,  defendant,  and  saith  that  said 
plaintiff  ought  not  to  have  and  maintain  his  aforesaid  action 
thereof  against  him,  because  he  saith  that  the  said  plaintiff,  for  a 
valuable  consideration,  assigned,  before  the  commencement  of  this 
suit,  the  claim  sued  on  in  this  action  to  certain  persons  trading 
under  the  name  of  Devas,  Eoutledge  &  Co.,  and  they  then  gave 
notice  thereof  to  this  defendant,  and  required  him  to  pay  the 
amount  thereof  to  them,  the  said  ,  and  said  assignment  still 

remains  in  full  force  and  unrevoked,  and  this  defendant  still  re- 
mains liable  to  pay  the  same  to  the  said  persons  above  named  as 
the  assignees  thereof;  and  this  he  is  ready  to  make  appear. 

\Y  E,  Attorney  for  Defendant. 

This  form  may  be  found  in  Jepps  v.  Day,  L.  E.,  1  Q.  B.  372, 
where  it  was  held  sufficient.  Blackburn,  J. :  "  In  this  case  the 
plea  in  effect  states  that  the  plaintiff  is  suing  for  a  debt,  which  he 
has  for  a  good  consideration  assigned  to  third  persons,  and  that 
they  have  given  notice  of  the  assignment  to  the  defendant,  and 
that  it  is  still  in  force.  All  the  cases  from  Winch  v.  Keely, 
1  Term,  619,  show  that  an  assignment  of  a  chose  in  action,  after 
notice  to  the  debtor,  is  perfectly  valid  in  equity,  and  passes  the 
beneficial  interest.  The  plaintiff  has  assigned  his  debt,  and  is 
therefore  improperly,  and  in  breach  of  good  faith,  suing  for  it." 
See  Jones  v.  Farrell,  1  De  G.  &  J.  218,  219. 

88.   PUIS   DARREIN   CONTINUANCE   TO   THE   JURISDICTION. 

And  now  comes  the  said  defendant,  and  for  a  farther  and  second 
answer  to  said  petition,  the  said  defendant  saith  that  this  court 
ought  not  further  to  take  jurisdiction  in  this  case;  because  he  saith 
that  the  said  plaintiff  is  a  citizen  ol  the  State  of  New  York,  and 
the  -aid  defendant  is  a  citizen  of  the  State  of  Massachusetts ;  and 
that  on  tli''         day  of  .  A.  D.  18     ,  and  before  answering  said 

action,  a  petition  of  said  defendanl  ami  a  bond  with  sufficienl  surety 
were  filed  for  the  removal  of  this  action  for  trial  into  the  Circuit 
Court  of  the  United  States  for  tin-  I  district  of  ,  according 

to  the  statute  of  the  United  .States  and  the  practice  in  such  ease 


670  FORMS   OP   ANSWERS. 


made  and  provided ;  and  that  notice  of  the  filing  of  such  petition 
and  bond,  and  that  this  court  would  thereafter  he  moved  to  grant 
the  prayer  of  said  petition  for  such  removal,  on  the  ground  that 
the  plaintiff  was  a  citizen  of  New  York  and  the  defendant  a  citizen 
of  Massachusetts,  and  that  the  matter  in  dispute  exceeded  the  sum 
of  five  hundred  dollars,  was  duly  served  upon  the  plaintiff's  attor- 
ney; and  that  said  motion  was  made  at  the  special  term  of  this 
court,  and  on  the         day  of  ,  A.  d.  18     ,  was  granted,  and  it 

was  thereby  ordered  that  the  said  security  so  offered  by  said  de- 
fendant be  accepted,  and  that  this  court  proceed  no  further  in  this 
cause,  and  the  same  he  removed  for  trial  into  the  Circuit  Court  of 
the  United  States  for  the  District  of  ,  and  that  upon  ap- 

peal from  said  order  to  the  Court  of  this  ,  said  order 

was  reversed  by  said  court ;  and  this  he  is  ready  to  make  appear. 

W  B  S,  Attorney  for  Defendant. 

This  is  in  substance  the  answer  in  the  case  of  Ayres  v.  The  West- 
ern E.  E.  Co.,  45  K  Y.  260.  The  court,  at  general  term,  reversed 
the  order  of  removal,  and  sent  the  case  down  for  trial.  The  de- 
fendant, the  Western  Eailroad  Company,  then  filed  this  plea ;  the 
court  below  sustained  a  demurrer  to  it,  and  the  case  was  tried  on 
the  merits,  and  judgment  for  plaintiff;  thereupon  the  railroad  com- 
pany took  the  case  up  to  the  Court  of  Appeals,  and  that  court  held 
the  answer  good,  and  reversed  the  judgment,  and  allowed  the  case 
to  go  to  the  United  States  Circuit  Court.  Such  a  case  may  occur 
again,  and  this  may  serve  as  a  form  to  take  the  case  up. 

89.    PUIS   DARREIN    CONTINUANCE. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  the  said 
plaintiff  ought  not  further  to  prosecute  his  said  action  thereof 
against  him;  because  he  saitb  that  since  the  last  continuance  of 
this  action,  and  after  the  said  bill  of  exchange  became  due  and 
payable,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  the  said  W  T, 

(he  was  one  of  the  indorsers,)  in  the  petition  mentioned,  paid  to  the 
said  plaintiff,  (he,  said  plaintiff,  then  being  the  holder  of  said  bill, 
and  entitled  to  receive  the  amount  due  and  payable  thereon,)  and 
the  plaintiff  then  accepted  and  received  of  and  from  the  said  W  T, 
a  large  sum  of  money,  to  wit,  the  said  sum  of  $  ,  named  in  said 
bill  of  exchange,  together  with  the  sum  of  $  ,  being  all  the  in- 
terest then  due  and  payable  thereon,  in  full  satisfaction  and  dis- 


FORMS   OP   ANSWERS.  671 


charge  of  the  said  bill  of  exchange  in  said  petition  mentioned,  and 
of  all  moneys  due  and  payable  on  account  and  in  respect  thereof; 
and  this  he  is  ready  to  make  appear. 

S  IS",  Attorney  for  Defendant. 

This  is  the  form  in  Goodwin  v.  Cremer  (decided  June  8,  1852), 
1G  Eng.  L.  &  Eq.  90 ;  Jones  v.  Broadhurst,  9  C.  B.  173 ;  Beaumont 
v.  Greathead,  2  C.  B.  494 ;  Thame  v.  Boast,  12  Q.  B.  808 ;  Bailey  v. 
Haines,  15  Q.  B.  533;  Wollen  v.  Smith,  9  Ad.  &  El.  505  ;  Gilmore 
v.  Carr,  2  Mass.  171 ;  Foster  v.  Buffum,  20  Maine,  124 ;  Farwell  v. 
Hilliard,  3  K  H.  318 ;  Turin  v.  Morris,  2  Dallas,  115 ;  Austin  v. 
Bemis,  10  Johns.  451  ;  Porter  v.  Ingraham,  10  Mass.  88;  Whipple  v. 
Newton,  17  Pick.  168.  On  such  a  plea,  if  not  denied,  the  plaintiff 
is  entitled  to  a  judgment  for  costs  up  to  the  time  of  filing  the  an- 
swer. Where  there  are  several  actions  pending  on  the  same  note 
or  bill,  it  was  held  in  Whipple  v.  Newton,  supra,  that  the  cost  in  all 
the  actions  must  be  paid.  In  each  separate  action  this  plea  must 
be  pleaded,  and  judgment  entered  for  costs  in  each  case.  This 
plea  is  to  the  further  prosecution  of  the  action.  This  form  may  be 
easily  shaped  to  meet  all  such  defenses.  If  the  bill  had  been  paid 
before  suit  against  any  one  on  it,  he,  if  sued,  could  plead  that  pay- 
ment in  bar,  though  not  made  by  himself.     See  the  cases  as  above. 

90.    PLEA   OP   PAYMENT   OP    MONET   INTO    COURT. 

And  now  comes  the  said  C  D,  defendant,  by  E  F,  his  attorney, 
(or,  in  person,)  and  says,  (or,  in  case  it  be  pleaded  to  part  only,  add, 
as  to  8  ,  being  part  of  the  sum  in  said  petition  demanded,  or 
as  to  the  residue  of  the  said  sum  of  S  ,)  that  the  plaintiff  ought 
not  further  to  maintain  his  action  ;  because  the  defendant  now 
brings  here  into  court  the  sum  of  8  ,  ready  to  be  paid  to  the 
plaintiff;  and  the  defendant  further  saith  that  there  is  no  more  due 
to  the  plaintiff  on  the  claim  set  up  in  said  petition,  (or,  in  case  of 
sounding  in  damages,)  that  the  plaintiff  has  not  sustained  damages, 
(or,  in  a  case  of  debt,  that  he  never  was  indebted)  to  a  greater 
amount  than  the  said  sum  of  8  ,  in  respect  of  the  cause  of  ac- 
tion in  the  petition  mentioned;  and  this  he  is  ready  to  make  ap- 
pear. Wherefore  he  prays  judgment,  if  said  plaintiff  ought  fur- 
ther to  maintain  his  action  thereof. 

AV  B  L,  Attorney  for  Defendant. 

This  is  the  form  prescribed  by  the  judges  in  England,  and  is 
good  under  the  code.     4  M.  &  W.  2.     If  the  plaintiff  accepts  the 


672  FORMS   OP   ANSWERS. 


offer  and  takes  the  money,  judgment  for  costs  would  follow.  If  ho 
refuses  the  sum  and  claims  more,  he  must  reply  that  said  de- 
fendant.is  indebted  to,  or  owes  him  a  larger  sum  than  is  stated  and 
tendered  in  said  plea;  and  the  case  goes  to  a  jury.  If  the  jury 
find  no  more  due,  the  plaintiff  must  pay  the  costs  of  the  trial ;  if 
more  due,  then  defendant  must  pay  all  the  costs.  This  form  may 
be  useful  occasionally. 

91.   NOTE   OP   A   THIRD   PERSON   TAKEN. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him ;  because  he  saith  that, 
alter  the  accruing  of  the  said  cause  of  action  in  the  said  petition 
mentioned,  and  before  the  commencement  of  this  suit,  he,  the  said 
plaintiff,  was  the  owner  of  a  certain  promissory  note  for  S  , 

given  by  one  ,  promising  to  pay  to  one  ,  or  order,  the 

said  sum  in  months  after  date,  and  which  note  was  indorsed 

in  blank  by  the  said  ,  and  that  he  then  delivered  the  said 

note  to  the  said  plaintiff,  and  the  said  plaintiff  accepted  the  same, 
in  full  satisfaction  and  discharge  of  the  said  cause  of  action  in  the 
said  petition  mentioned ;  and  this  he  is  ready  to  make  appear. 

92.    HIGHER   SECURITY   GIVEN. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  have  his  said  action  against  him ; 
because  he  saith  that,  as  to  the  sum  of  £3,000,  parcel  of  the  money 
in  the  last  said  count  of  the  said  petition  mentioned,  heretofore  and 
after  the  accruing  of  the  cause  of  action  as  to  the  said  sum  of 
£3,000,  parcel  of  said  sum  in  said  last  count  mentioned,  and  before 
the  commencement  of  this  action,  to  wit,  on  the         day  of  , 

a.  d.  18  ,  it  was  agreed  between  the  said  plaintiff  and  the  said 
defendant,  that  the  said  defendant  should  sign,  seal,  and,  as  his  act 
and  deed,  deliver  to  the  said  plaintiff  a  certain  indenture,  between 
the  said  plaintiff  of  the  one  part  and  the  said  defendant  of  the 
other  part,  and  thereby,  amongst  other  things,  covenant  and  agree 
with  the  said  plaintiff  that  he,  the  said  defendant,  should  and 
would  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  plaintiff 
the  said  sum  of  £3,000,  in  the  introductory  part  of  this  plea  men- 
tioned, at  or  in  the  common  dining-hall  of  Lincoln's  Inn,  in  the 
county  of  Middlesex,  on  the         day  of  ,  a.  d.  18     5  with 


FORMS   OP    ANSWERS.  673 


interest  thereon  from  the         day  of  ,  a.  d.  18     ;  and  the  said 

defendant  further  saith  that,  in  pursuance  of  the  said  agreement, 
and  in  performance  of  his  part  thereof,  he,  the  said  defendant,  did, 
afterward,  and  before  the  commencement  of  this  action,  and  while 
the  said  sum  of  £3,000  was  still  due  and  unpaid,  as  aforesaid,  to 
wit,  on  the  da}'  and  year  last  aforesaid,  with  the  consent  and  at  the 
request  of  the  said  plaintiff,  sign,  seal,  and,  as  his  act  and  deed, 
deliver  to  the  said  plaintiff  such  indenture,  as  aforesaid,  and  did 
thereby  covenant  to  pay  the  said  sum  of  £3,000,  with  interest 
thereon  as  aforesaid,  upon  and  at  the  day  and  time,  and  in  the 
manner  as  aforesaid  agreed  upon ;  and  this  the  said  defendant  is 
ready  to  make  appear. 

This  plea  was  held  good  in  the  case  of  Eice  v.  Moulton,  2  Eng. 
L.  &  Eq.  303.  The  general  rule  is  that  the  giving  of  a  higher 
remedy  merges  the  lower  for  the  debt.  The  policy  of  the  law  is 
that  there  shall  not  exist  two  remedies  in  respect  to  the  same 
demand.  So  the  giving  of  a  negotiable  instrument  would  dis- 
charge an  open  account.  Ilsley  v.  Jewett,  2  Metcalf,  168 ;  Scott  v. 
Ray,  18  Pick.  360.  A  negotiable  note  is  a  payment  of  an  install- 
ment on  a  mortgage  note,  and  discharges  the  mortgage  to  that 
amount.  Fowler  v.  Bush,  21  Pick.  230 ;  French  v.  Price,  24  lb.  13; 
Butts  v.  Dean,  2  Metcalf,  76 ;  5  Mo.  59  ;  24  Maine,  202. 

93.   PAYMENT    IN    MONEY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  prosecute  his  said  action;  because 
he  says  thai  he,  the  said  defendant,  did,  before  the  commencement 
of  this  suit,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  pay  to  the 

said  plaintiff  the  said  sum  of  $  ,  in  said  petition  demanded, 
together  with  all  interest  at  that  time  due  thereon;  and  this  he  is 
ready  to  make  appear. 

Vide  McKyring  v.  Bull,  10  N.  Y.  297. 

94.    PAYMENT   OP   PART. 

And  the  said  C  B,  defendant,  now  comes,  and  for  answer  to  the 

petition  of  the  said   A  H.  plaintiff,  saith  that  the  said  A  B  ought 

not  to  have  his  said  action  against  him  ;  because  lie  saith  thai,  as 

to  all  of  said  sum  <>['*        ,  except  tin'  sum  of  §        ,  this  defendant 

vol.  i — 43 


674  FORMS   OF    ANSWERS. 


docs  not  owe  the  same,  nor  any  part  thereof,  to  the  said  plaintiff; 
and  as  to  the  said  sum  of  $  ,  parcel  of  said  sum  of  $  ,  above 
demanded,  the  said  defendant  saith  that,  after  the  said  sum  of 
$  became  payable,  and  before  the  commencement  of  this  action, 
he  paid  to  the  said  plaintiff  the  sum  of  $  ,  together  with  all 
interest  due  thereon  ;  and  this  he  is  ready  to  make  appear. 

95.    NO    SUCH    RECORD. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  prosecute  his  said  action  against 
him;*  because  he  saith  that  there  is  not  any  record  of  the  said  sup- 
posed judgment  and  recovery,  (or,  recognizance,  as  the  case  may 
be,)  in  the  said  petition  mentioned,  remaining  in  said  Court  of 
Common  Pleas,  within  and  for  the  county  of  ,  and  State  of 

,  as  the  said  plaintiff  hath,  in  his  said  petition,  alleged ;  and 
this  he  prays  may  be  inquired  of  by  the  court  here. 

96.    BY    BAIL    TO    THE    ACTION. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  be  permitted  further  to  prosecute  his  said  action  ;  be- 
cause he  saith  that,  after  the  recovery  of  the  said  judgment,  as  in 
said  petition  set  forth,  and  before  the  commencement  of  this  action, 
there  was  no  writ  of  capias  ad  satisfaciendum  duly  sued  or  prose- 
cuted out  of  the  said  Court  of  ,  against  the  said  ,  (the 
defendant  in  the  judgment,)  upon  the  said  judgment,  and  duly  re- 
turned in  the  said  court ;  and  this  he  is  ready  to  make  manifest. 

97.    DEATH    OF    PRINCIPAL. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  said  plaintiff  ought  not 
to  have  his  said  action  against  him ;  because  he  saith  that,  after 
the  recovery  of  the  said  judgment,  in  said  petition  mentioned, 
and  before  the  return  of  any  writ  of  capias  ad  satisfaciendum 
thereupon  against  the  said  ,  (the  principal,)  at  the  suit  of 

said  plaintiff  upon  said  judgment,  he,  the  said  ,  died;  and 

this  he  is  ready  to  make  appear. 


FORMS    OP   ANSWERS.'  675 


98.   PAYMENT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  said  plaintiff  ought 
not  to  have  his  said  action  against  him ;  because  he  saith  that, 
after  the  recovery  of  the  said  judgment,  and  before  the  commence- 
ment of  this  action,  to  wit,  on  the  day  of  ,  a.  d.  18  ,  the 
said  defendant  paid  and  satisfied  to  the  said  plaintiff  the  said  sum 
of  $  ,  in  form  aforesaid  recovered ;  and  this  he  is  ready  to 
make  appear. 

Accord  and  satisfaction  may  be  pleaded  to  an  action  on  a  judg- 
ment. Harper  v.  Graham,  20  Ohio,  105.  So  also  any  other  de- 
fense which,  admitting  the  judgment,  shows  it  to  have  been  satis- 
fied or  discharged.  The  judgment  can  not  be  impeached.  Lud- 
low's Heirs  v.  Johnson,  3  Ohio,  541  ;  Silver  Lake  Bank  v.  Hardin,  5 
Ohio,  545  ;  Goodrich  v.  Jenkins,  G  Ohio,  43 ;  Anderson  v.  Ander- 
son, 8  Ohio,  108;  Bank  of  Australasia  v.  Mas,  4  Law  &  Eq.  252. 
If  there  has  been  no  service  on  the  defendant,  the  judgment  is 
void  as  against  a  person  in  another  state.  D'Arcy  v.  Ketchum 
et  al.,  11  How.  U.  S.  1G5.  Hence  this  question  may  be  raised  on 
the  plea  of  mil  tiel  record,  notwithstanding  the  case  of  Evans  v. 
Gustine,  G  Ohio,  117.  So  a  judgment  rendered  against  two,  where 
the  record  shows  a  service  only  on  one,  is  void  as  to  both.  Hall  v. 
"Williams,  G  Pick.  232;  Holbrook  v.  Murray  et  al.,  5  Wend.  1G1 ; 
Pangeley  v.  Webster,  11  N.  H.  299  ;  1  lb.  242  ;  7  Ih.  257.  If  the 
judgment  is  void,  then  that  question  can  be  raised  on  an  answer 
of  no  such  record;  because  the  record,  when  presented,  shows  no 
such  judgment  as  is  declared  on  ;  a  void  judgment  being  no  judg- 
ment. Benton  v.  Burgat,  10  Serg.  &  R.  242 ;  Hall  v.  Williams, 
G  Pick.  232. 

Where,  however,  the  record  shows  a  service  there,  if  in  fact  no 
service  was  had,  the  fact  should  be  set  up  by  plea.  Hall  v.  Will- 
iam-, supra.  So  if  a  judgment  was  obtained  by  fraud,  that  fact, 
under  the  code,  may  be  set  upas  a  defense  to  an  action  on  the 
judgment.  The  fraud  or  other  misconduct,  which  will  bar  a  suit 
on  a  judgment,  is  such  as  would  have  induced  a  court  of  equity  to 
grant  a  perpetual  injunction  against  its  collection.  In  a  case 
where  n  courl  of  equity  would  merely  granl  a  new  trial,  no  an- 
swer to  a  judgmenl  can  be  interposed  setting  up  such  facts;  the 
remedy  is  by  an  original  petition  for  a  new  trial.  Nothing  less 
than  fraud  in  obtaining  the  judgment  can  be  set  up  as  a  defenso 


676  FORMS   OF    ANSWERS. 


to  an  action  on  the  judgment — such  a  fraud  as  would  avoid  a  con- 
tract. Collier  v.  Easton,  2  Mo.  145.  Any  equitable  defense  to  the 
original  action  can  not  now  be  ground  lor  vacating  or  defeating  a 
judgment,  since  the  party  was  bound  to  make  such  defense  to  the  ac- 
tion. Hence  nothing  can  now  be  pleaded  to  bar  an  action  on  the 
judgment  but  what  amounts  to  fraud  in  obtaining  it.  Vide  2  U. 
S.  Bq.  Dig.  125. 

The  form  of  such  a  plea  must  depend  upon  the  character  of  the 
fraud,  and  the  facts  constituting  the  fraud  must  be  stated  ;  a  gen- 
eral plea  of  fraud  will  not  be  sufficient.  Vide  2  W.  Law  Jour.  297, 
and  cases  there  cited.     Contra,  Saunders  v.  Stotts,  6  Ohio,  380. 

99.   FRAUD. 

{Follow  95  to*;)  because  he  says  that  the  said  judgment,  in  the 
petition  of  the  said  plaintiff  mentioned,  was  obtained  by  the  said 
plaintiff  against  the  said  defendant  by  fraud  and  misrepresenta- 
tion, in  this,  to  wit,  that  the  said  plaintiff,  after  he  had  com- 
menced the  said  action  in  his  said  petition  mentioned,  fraudulently 
came  to  this  defendant,  and,  with  the  purpose  of  preventing  the 
said  defendant  from  defending  said  action,  told  him,  the  said  de- 
fendant, that  he,  the  said  plaintiff,  intended  and  would  dismiss  his 
said  action  then  pending  in   said  Court  of  ,  within  and  for 

the  said  county  of  ,  and  State  of  ,  and  against  this  de- 

fendant, and  that  this  defendant  need  not  be  at  the  cost  or  expense 
of  employing  counsel  to  defend  said  action  ;  that  this  defendant, 
in  consequence  of  such  representation,  and  relying  upon  the  same, 
did  not  employ  counsel  to  attend  to  said  action,  nor  did  this  de- 
fendant appear  at  the  term  of  said  court  next  thereafter  held  ;  and 
this  defendant  further  saith  that  the  said  plaintiff,  fraudulently  and 
without  the  knowledge  of  this  defendant,  appeared  and  prosecuted 
his  said  action  in  the  absence  of  this  defendant,  and  fraudulently 
took  the  said  judgment  against  this  defendant,  by  the  default  of 
this  defendant,  which  default  was  fraudulently  procured  by  the 
said  plaintiff  as  aforesaid  ;  and  this  he  is  ready  to  make  appear. 

100.    FRAUD   IN    OBTAINING    CONTRACT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him ;  because  he  saith  that  the 
said  promissory  note  in  the  said  petition  mentioned  was  obtained, 
by  the  said  plaintiff  from  the  said  defendant,  by  fraud  and  misrep- 


FORMS   OP   ANSWERS.  677 


resentation,  in  this,  to  wit,  {here  state  the  facts  connected  with  the 
execution  of  the  note,  bill,  or  contract,  as  for  example  :)  that  the  said 
plaintiff  pretended  and  represented  that  he  was  possessed  of  a  cer- 
tain patent  right  for  an  improved  churn,  and  urged  the  defendant 
to  buy  the  right  to  make  and  vend  the  same  within  the  county  of 
.  and  the  said  plaintiff,  to  induce  the  said  defendant  to  buy 
the  said  right,  then  falsely  represented  that  said  patent  churn  was 
a  valuable  improvement,  and  that  large  sums  of  money  could  be 
made  thereby  ;  and  the  said  defendant,  relying  on  said  representa- 
tions, agreed  with  the  said  plaintiff  to  buy  of  him,  for  the  sum  of 
§  ,  the  right  to  make  and  vend  such  patent  churns  within  the 
said  county  of  ,  and  thereupon  the  said  defendant  made  and 

delivered  the  promissory  note  aforesaid;  and  the  said  defend- 
ant avers  that  the  said  patent  was  void  for  want  of  novelty,  and 
the  said  churn,  when  so  made,  was  of  no  value,  and  no  improve- 
ment whatever  on  the  former  method ;  all  which  he,  the  said 
plaintiff,  well  knew,  when  he  so  falsely  and  knowingly  made  such 
representations  and  statements,  to  induce  the  said  defendant  to  give 
the  said  promissory  note  as  aforesaid ;  and  this  the  said  defendant 
is  ready  to  make  appear. 

A  plea  of  this  character  must  be  wholly  dependent  on  the  pecu- 
liar facts  of  each  case,  so  much  so  that  but  very  little  aid  can  be 
received  from  forms,  except  as  a  mean  of  learning  the  language 
and  literature  thereof. 

101.    FAILURE    OF    CONSIDERATION. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  him;  because  he  saith 
that  the  said  promissory  note  in  said  petition  mentioned  was  given 
in  consideration  of  a  certain  horse  which  he,  the  said  plaintiff,  then 
and  there  sold  ami  delivered  to  the;  said  defendant,  and  for  no  other 
consideration  whatever;  and  the  said  defendant  further  saith  that 
the  said  plaintiff  hail  no  title  to  the  said  horse  at  tin;  time  he  so 
Bold  and  delivered  the  same,  but  the  said  horse  was  then  owned  by 

and  wag  the  property  of  cue  E  F,  who  afterward  claimed  and  re- 
covered tie'  same  from  the  said  defendant  ;  whereby  said  promis- 
sory note  was  wholly  without  consideration;  and  this  the  said 
plaintiff  is  ready  to  make  appear. 


678  FORMS    OF    ANSWERS. 


102     PLEA   BY   SURETY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him;  because  he  saith  that  the 
said  defendant,  without  any  consideration,  and  as  the  mere  surety 
of  the  said  ,  did  sign  the  said  note  in  the  said  petition  men- 

tioned, of  all  which  the  said  plaintiff  then  had  notice;  and  the  said 
defendant  further  saith  that,  afterward,  and  after  the  said  promis- 
sory note  had  become  payable,  the  said  plaintiff  agreed  with  the 
said  that,  in  consideration  that  the  said  would  pay  to 

the  said  plaintiff  the  sum  of  $  ,  as  interest  on  the  amount  named 
in  said  note  for  one  year,  he,  the  said  plaintiff,  would  extend  and 
delay  the  payment  of  the  said  note  for  one  year  from  and  after  the 
same  became  payable,  and  the  said  defendant  saith  that  the  said 
did  pay  the  said  sum  of  $  to  the  said  plaintiff,  and  the  said 
plaintiff  did  receive  the  same  on  the  agreement  aforesaid,  and  did 
then  and  thereby  bind  himself  to  extend  the  time  of  payment  on 
said  note  as  aforesaid,  and  did  so  extend  and  delay  payment  thereof; 
and  this  the  said  defendant  is  ready  to  make  appear. 

See  Ohio  Life  and  Trust  Company  v.  McCague,  18  Ohio,  54 ;  Bank 
of  Steubenville  v.  Carroll's  Adm'r,  5  lb.  207,  21-4;  Same  v.  Hoge 
et  al.,  6  lb.  17  ;  11  lb.  444;  Canton  Bank  v.  Beynolds,  13  lb.  84. 
The  contract  to  be  binding  must  be  on  a  consideration.  McComb 
v.  Kittridge,  14  lb.  348. 

103.  ILLEGAL  INTEREST  IN  NOTE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that,  as  to  the  sum  of  , 
parcel  of  said  sum  of  $  ,  in  said  petition  demanded,  the  said  de- 
fendant admits  that  he  owes  the  said  sum  of  $  to  the  said 
plaintiff;  but  as  to  the  sum  of  $  ,  the  residue  of  the  said  sum 
of  $  the  said  defendant  says  that  the  said  plaintiff  ought  not 
to  have  his  said  action  thereof  against  him ;  because  he  saith  that 
the  said  promissory  note  in  the  said  petition  mentioned  was  given 
by  the  said  defendant  to  the  said  plaintiff  for  the  loan  of  for 
years,  and  no  more,  and  that  the  said  sum  of  $  was  in- 
cluded in  said  note,  as  interest  on  the  said  sum  of  $  ,  for  the 
said  term  of  years,  at  the  rate  of  per  cent,  per  anpum ;  and 
this  he  is  ready  to  make  appear. 


FORMS    OP    ANSWERS.  679 


Where  paj'ments  have  been  made,  it  may  be  necessary  to  admit 
the  amount  due,  plead  payment  of  so  much,  and  then,  as  to  the 
residue,  set  up  the  illegal  interest ;  the  form  then  will  be,  as  to  so 
much,  admit  it  due ;  as  to  so  much,  paid ;  and  as  to  so  much,  ille- 
gal interest,  as  in  the  above. 

104.    ALTERATION    OF   A    BILL    OF    EXCHANGE. 

And  the  said  C  D,  defendant,  now  comes,  and  saith  that  said 
plaintiff  ought  not  to  have  his  said  action  thereof  against  him;  be- 
cause he  saith  that,  after  the  said  bill,  (or,  promissory  note,  etc.,)  was 
drawn  and  accepted  as  aforesaid,  and  after  it  was  completely  issued 
and  negotiated  by  the  said  defendant,  as  acceptor  as  aforesaid,  and 
whilst  in  the  possession  of  the  said  ,  (the  drawer  and  payee 

of  the  bill)  the  plaintiff,  without  the  consent  or  knowledge  of  this 
defendant,  willfully  altered  the  said  bill  in  a  material  part,  to  wit, 
(here  set  out  the  alteration,)  and  the  said  alteration  was  not  made  in 
correction  of  any  mistake  originally  made  in  framing  the  said  bill, 
(or,  note.)  or  to  further  the  first  intention  of  the  parties  thereto,  or 
any  of  them ;  and  this  he  is  ready  to  make  appear. 

W  B  L,  Attorney  for  Defendant. 

This  was  the  plea  in  the  case  of  Burchfield  v.  Moore,  25  Eng.  L 
&  Eq.  123,  and  was  held  a  good  plea.  The  alteration  consisted  in 
adding  to  the  acceptance  the  words,  "  payable  at  the  Bull  Inn,  Aid- 
gate."  The  court  held  the  alteration  material,  and  that  it  avoided 
the  bill.  This  case  shows  that  in  the  plea  the  alteration  need  not 
be  stated — that  the  averment  that  it  is  material  is  sufficient.  The 
replication  in  this  casc'set  up  what  tin'  alteration  was.  Mackin- 
tosh r.  Haydon,  By.  &  M.  362;  Deshrow  v.  Weatherly,  (J  Car.  &  P. 
758;  Davidson  v.  Cooper,  13  Mee.  &  Wels.  343;  Cowie  v.  Halsal, 
4  B.  &  Aid.  197 ;  Taylor  v.  Moseley,  6  Car  &  P.  273 ;  11  Coke,  26, 
Bigot's  case.  The  hill  is  void  in  the  hands  of  a  bona  fide  holder  for 
value.  Mastery.  Miller,  4  Term,  320;  2  II.  Black.  HO.  The  hill 
in  the  main  case  here  was  in  the  hands  of  an  innocent  holder; 
still  the  alteration  made  the  hill  void,  and  no  one  could  recover  on 
il.  The  remedy  was  on  the  party  from  whom  the  bill  had  been 
received. 

I  n  Parmer  v.  Rand,  1  I  Blaine,  225,  one  of  the  indorsers,  whose  name 
was  on  the  note,  after  the  defendanl  had  indorsed  it,  wrote  above  all 
the  oames  of  the  indorsers  the  following  words:  "We  waive  all  no- 
tice on  the  promisor  and  ourselves,  and  guarantee  the  payment al  nil 
events."     This  was  held  to  hind  all  the  indorsers,  and  being  writ- 


680  FORMS    OP    ANSWERS. 


ten  there  without  their  knowledge  or  consent,  was  a  material  alter- 
ation and  rendered  the  indorsements  void.  In  Buck  v.  Appleton, 
14  Maine,  284,  a  similar  question  arose.  J.  W.  Appleton,  one  of  the 
indorsers,  and  after  all  the  indorsers  had  made  their  indorsement, 
wrote  after  the  name  of  the  first  indorsee  and  payee  these  words, 
■  We  waive  noticed  The  court  held  that  these  words  applied  to  all 
the  indorsers  whose  names  were  subsequent  to  these  words  ;  that 
the  alteration  was  a  material  one  and  rendered  the  subsequent  in- 
dorsements void.  Wiston,  C.  J.,  in  the  first  case,  said:  uThe  au- 
thorities are  very  clear  that,  if  a  note,  or  other  instrument,  he 
altered  in  a  material  part,  without  the  consent  of  the  part}'  to  be 
affected  by  it,  it  is  void."  Master  v.  Miller,  4  Term,  320  ;  Powell  v-. 
Divett,  15  East,  29;  Hatch  v.  Hatch,  9  Mass.  311 ;  Homer  v.  Wallis, 
1.1  Mass.  309 ;  Cowie  v.  Halsal,  4  B.  &  Aid.  197 ;  Wheelock  v.  Free- 
man, 13  Pick.  165  ;  Clawson  v.  Dustin,  2  Southard,  821  ;  Hinch- 
feld  i'.  Smith,  L.  K.,  1  Q.  B.  340.  Where  a  promissory  note  ex- 
pressed no  time  for  payment,  and  while  in  possession  of  the  payee, 
he  added  the  words  "On  demand,"  it  was  held  not  to  alter  the  legal 
effect  of  the  note,  and,  therefore,  did  not  render  it  void.  The  rule 
in  Pigot's  ease,  11  Keps.  27,  n.,  that  an  immaterial  alteration  by 
the  obligee  avoids  the  bond,  disapproved  of.  Davidson  v.  Cooper, 
11  M.  &  W.  778;  S.  C,  13  M.  &  W.  343;  Langhorn  v.  Cologan,  4 
Taunt.  330  ;  Fairlie  v.  Christie,  7  lb.  416 ;  Colton  v.  Simpson,  8  A. 
&  E.  136  ;  Gardner  r.  Walsh,  5  E.  &  B.  83  ;  Patterson  v.  McNeely, 
16  Ohio  St.  348;  Page  v.  Morrell,  3  Keys,  117;  McCaughey  v. 
Smith,  27  N.  Y.  39.  Where  the  payee,  wishing  to  negotiate  a  note 
signed  by  S,  wrote  his  name  under  that  of  S,  held  not  to  release  S. 
Brownell  v.  Winnie,  29  N.  Y.  400.  Colton  v.  Simpson  is  overruled 
in  Gardner  v.  Walsh,  5  E.  &  B.  83 ;  85  Eng.  C.  L.  82.  This  last 
ease  holds  that  the  addition  of  the  name  of  another  maker  is  a 
material  alteration.  The  removal  of  any  writing  under  the  signa- 
ture, which  was  there,  when  the  note  was  delivered,  is  an  altera- 
tion, and  if  material  avoids  it.  Johnson  v.  Heagan,  23  Maine,  329; 
Thornton  v.  Appleton,  29  lb.  298;  L.  P.,  3  Q.  B.  379;  L.  E., 
2  Exch.  189 ;  25  Eng.  L.  &  Eq.  116  ;  32  Eng.  L.  &  Eq.  162 ;  75  Eng. 
C.  L.  763;  12  Pick.  399;  Huntington  v.  Finch,  3  Ohio  St.  445; 
Merrick  v.  Boury,  4  lb.  60  ;  Fullerton  v.  Sturges,  4  lb.  530 ;  Por- 
tage County  Bank  v.  Lane,  8  lb.  405 ;  Sturges  v.  Williams,  9  lb. 
443. 

The  rule  in  the  Ohio  cases  seems  to  reject  the  doctrine  that  a 
material  alteration  by  a  stranger  avoids  the  agreement,  and  holds 
it  must  be  made  by  one  a  party  to  the  instrument.     Pwanney,  J.,  says 


FORMS    OP    ANSWERS.  681 


that  fraud  in  the  interested  party  lies  at  the  foundation  of  the  rule, 
and  as  a  punishment  for  his  fraud  the  law  deprives  him  and  all 
claiming  under  him  of  all  remedy  upon  it.  1  Gall.  69;  14  S.  &  R. 
405 ;  8  Cowen,  71 ;  1  Watts,  237. 

The  above  form  may  be  objectional ;  it  may  be,  under  our  de- 
cisions, the  words,  or  a  person  whose  name  is  unknown  to  the  said  de- 
fendant, should  be  omitted ;  and  the  words  constituting  the  altera- 
tion be  also  inserted. 

JRent. 

105.    NON   DEMISIT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  says  that  said  plaintiff  ought 
not  to  have  his  said  action,*  because  he  says  that  the  said  plaintiff 
did  not  demise  to  the  said  defendant  the  said  lands  and  tenements 
in  the  said  petition  named,  with  the  appurtenances,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  declared  against 
him ;  and  of  this  he  puts  himself  upon  the  country. 

106.    NIL    HABTTIT. 

(Follow  the  above  to  * ;)  because  he  says  that  the  said  plaintiff,  at 
the  time  of  the  demise  aforesaid,  in  the  said  petition  mentioned, 
had  nothing  in  the  tenements  aforesaid,  whereof  he  could  make 
the  demise  aforesaid ;  and  this  he  is  ready  to  make  appear. 

Neither  of  these  pleas  are  good,  where  the  tenant  is  in  under 
such  circumstances  that  he  is  estopped  from  disputing  the  plaint- 
iffs title.  When  he  has  occupied  the  premises  without  being  dis- 
turbed by  a  superior  title,  lie  must  pay.  Moore  v.  Beasley,  3  Ohio, 
294 ;  1  A.  K.  Marsh,  330 ;  2  lb.  366  ;  6  Johns.  34 ;  3  Fairfield,  478  ; 
5  Watts,  55. 

107.    NO    RENT    IN    ARREAR. 

(Follow  105  to  *;)  because  ho  sa}-s  that,  as  to  the  said  sum  of 
8  ,  which  the  said  plaintiff  by  his  said  petition  claims  to  bo  to 
him  in  arrear  of  tin-  renl  aforesaid,  there  is  nothing  thereof  in  ar- 
rear  to  the  said  plaintiff,  as  the  said  plaintiff  in  his  said  petition 
has  averred,  and  of  this  he  puts  himself  upon  the  country. 

108.   EVICTION. 

(  Follow  105  to  . )  because  he  says  that  the  said  plaintiff,  after  the 
lime  of  making  the  demise  aforesaid,  and  before  any  lime  of  pay- 


682  FORMS    OP    ANSWERS. 


ment  of  any  portion  of  said  rent,  to  wit,  on  the  day  of  , 

A.  n.  18  ,  entered  into  the  tenements  aforesaid,  with  the  appur- 
tenances, upon  the  possession  of  the  said  defendant,  and  him,  the 
said  defendant,  expelled  and  ejected  therefrom,  and  him,  the  said 
defendant,    hath    always,   from    the    said    day   of  hitherto, 

kepi  out  of  the  possession  of  the  same;  and  this  he  is  ready  to 
make  appear. 

If  the  tenant  expressly  agrees  to  pay  rent — yet  if  he  he  evicted 
by  the  lessor,  it  will  he  a  sufficient  reason  for  not  paying.  1  Saund. 
204. 

109.    EVICTION   OP   PART. 

(Follow  105  ft)*;)  because  he  says  that,  after  the  said  demise  of 
the  premises  in  the  petition  above  specified,  and  before  any  rent 
by  that  demise  became  due  and  payable  to  the  said  plaintift',  to 
wit,  on  the         day  of  ,  A.  d.  18     ,  the  said  plaintiff,  with 

force  and  arms  into  (here  describe  the  part  from  which  he  has  been 
ejected,')  parcel  of  the  premises  aforesaid,  with  the  appurtenances, 
to  the  said  defendant  above,  in  form  aforesaid,  demised,  in  and 
upon  the  possession  of  the  said  defendant  thereof,  entered,  and 
him,  the  said  defendant,  from  his  said  possession  ejected,  and  him, 
the  said  defendant,  from  thence  and  until  and  after  the  said  day  of 
,  a.  d.  18  ,  (the  day  when  rent  became  due,)  hath  kept  out ; 
and  this  he  is  ready  to  make  appear. 

110.    ASSIGNMENT    OP    TERM    BY    LESSEE. 

(Follow  105  to  * ;  (because  he  saith  that,  after  the  making  the 
said  demise  in  the  said  petition  mentioned,  and  before  any  part  of 
the  said  rent  in  said  petition  demanded  became  due  and  payable, 
to  wit,  on  the         day  of  ,  a.  d.  18     ,  he,  the  said  defendant, 

by  a  certain  indenture  of  assignment,  by  him  then  made  and  duly 
executed, Hid  sell,  and  assign,  and  set  over  to  one  ,  all  his, 

the  said  defendant's,  right  and  title,  and  term  in  and  to  said  prem- 
ises, with  the  appurtenances;  by  virtue  of  which  said  indenture  of 
assignment,  the  said  afterward,  to  wit,   on  the         day  of 

,  A.  d.  18  ,  entered  into  said  demised  premises,  with  the 
appurtenances,  and  became  thereof  possessed  for  the  residue  of 
said  term,  then  to  come  in  and  to  said  premises;  whereof  the  said 
plaintiff,  on  the  said         day  of  ,  A.  p.  18     ,  had  notice;  and 

the  said  defendant  further  saith  that  the  said  plaintiff  did  accept 
and  receive  from  the  said  ,  as  tenant  to  the  said  plaintiff,  a 


FORMS   OF    ANSWERS.  683 


large  sum  of  money  for  the  rent  aforesaid,  in  form  aforesaid  re- 
served and  then  made  payable,  and  did  then  accept  the  said 
as  his  tenant  of  the  said  demised  premises,  with  the  appurtenances  ; 
and  this  he  is  ready  to  make  appear. 

See  forms,  2  Saund.  297.  This  plea  is  a  good  bar,  where  the 
action  is  founded  upon  the  use  and  occupation  of  the  premises  ; 
where  the  action  is  on  the  express  contract  to  pay  rent,  there  the 
party  is  bound  by  his  contract,  and  must  pay,  if  his  assignee 
does  not.     1  Saund,  241,  242,  n.  5. 

111.    ASSIGNEE   THAT    HE   ASSIGNED    BEFORE    RENT   DUE. 

(Follow  105  to  *j)  because  he  says  that,  after  he,  the  said  defend- 
ant, became  assignee  of  the  said  demised  premises,  as  in  said 
petition  mentioned,  and  before  any  part  of  the  said  rent  became 
due  and  owing  to  the  said  plaintiff,  to  wit,  on  the         day  of  , 

a.  d.  18     ,  he,  the  said  defendant,  did  assign  and  set  over  to  one 
,  all  his  right,  title,  and  term  yet  to  come  in  and  to  said 
premises ;  by  virtue  of  which  the  said  ,  afterward,  on  the 

day  and  year  last  aforesaid,  did  enter  into  the  said  premises  and 
became  thereof  possessed  for  the  residue  of  said  terxn  then  to  come 
therein  and  unexpired,  and  this  he  is  ready  to  make  appear. 

It  is  not  necessary  to  aver  notice  of  the  assignment.  The  as- 
signee is  only  liable  for  the  actual  use  and  occupation,  and  not  on 
the  lease.  1  B.  &  P.  21 ;  Bac.  Abr.,  Covenant,  E.  4.  Nor  is  the 
assignee  of  a  part  of  the  premises,  or  a  part  of  the  term,  liable  to 
the  lessor  for  rent.     Fulton  et  al.  v.  Stuart,  2  Ohio,  215. 

112.    ASSIGNEE   DENYING   ASSIGNMENT. 

(Follow  105  to  *  ;)  because  he  saith  that  all  the  estate,  interest,  and 
term  of  years  then  to  come  and   unexpired  of  the  said  , 

(lessee,)  of  and  in  to  the  said  premises,  with  the  appurtenances,  by 
assignment  thereof  duly  made,  did  not  come  to  and  vest  in  the 
said  defendant,  in  manner  and  form  as  the  said  plaintiff  hath  in 
said  petition  alleged,  and  of  this  ho  puts  himself  upon  the  country. 

113.    TENDER   ON    LAND. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  this  defendant  for  a  greater  sum 


684  FORMS   OF   ANSWERS. 


than  &         ;  because  ho  saith  that  he,  the  said  defendant,  was  pres- 
ent at  the  said  demised  dwelling-house  and  premises,  on  the  said 
day  of  ,  A.  d.  18     ,  being  the  day  on  which  said  sum  of 

$  became  due  and  payable  as  aforesaid,  for  a  reasonable  and 

long  space  of  time  next  before  the  setting  of  the  sun  in  the  same 
day,  the  same  being  a  convenient  and  sufficient  time  before  the 
setting  of  the  sun  on  that  day  for  the  counting  of  the  money  with 
winch  the  said  defendant  wished  and  intended  to  pay  the  said 
rent,  and  also  that  he  was  for  a  reasonable  time  after  the  setting 
of  the  sun  in  the  same  day,  ready  there  to  pay,  and  offered  to  pay 
the  said  sum  of  $  ,  to  the  said  plaintiff;  but  that  neither  the 

said  plaintiff,  nor  any  one  on  his  behalf,  during  said  time,  nor  any 
part  thereof,  .was  there  ready  to  receive  the  same;  and  the  said 
defendant  further  saith  that  he  hath  always  since  the  said  day 
been,  and  still  is,  ready  to  pay  the  same  to  the  said  plaintiff,  and 
the  said  defendant  now  brings  the  said  sum  of  $  ,  here  into 

court,  ready  to  be  paid  to  the  said  plaintiff,  if  he  will  accept  the 
same  ;  and  this  he  is  ready  to  make  aj)pear. 

As  to  the  law,  see  Lessee  of  Boyd  v.  Talbert,  12  Ohio,  212 ;  4 
Taunt.  549 ;  Bac.  Abr.,  Tender,  H.  1 ;  lb.,  Condition,  P.  4 ;  McCor- 
mick  v.  Connell,  6  S.  &  E.  151 ;  Jackson  v.  Kipp,  3  Wend.  230.  If 
the  tender  is  made  to  the  lessor  himself,  it  is  good,  though  not 
made  on  the  land,  but  the  plea  should  be  so  changed  as  to  show 
that  state  of  facts.  It  would  otherwise  be  like  an  ordinary  plea 
of  tender.     Hunter  v.  LeConte,  6  Cow.  728. 

114.    MISCONDUCT   OF   PLAINTIFF   AS   BAR   TO   NOT    MARRYING. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  her  said  action  against  him ;  because  he  saith  that, 
after  the  making  of  the  promise  in  the  said  petition  set  forth,  and 
without  the  connivance  or  knowledge  of  the  said  defendant,  the 
said  plaintiff  did,  on  the  day  of  ,  a.  d.  18     ,  at  the  resi- 

dence of  ,  in  ,  have  carnal  connection  with  one  E  F ; 

wherefore  the  said  defendant,  as  soon  as  he  had  knowledge  thereof, 
refused  to  marry  the  said  plaintiff,  as  he  legally  might;  and  this  he 
is  ready  to  make  appear. 

If  the  conduct  complained  of  consists  in  such  acts  as  lead  to  the 
general  belief  that  she  has  been  guilty  of  fornication,  this  fact  may 
be  given  in  evidence  in  mitigation  of  damages ;  but  is  not  a  bar  to 


FORMS   OP   ANSWERS.  685 


the  action.  In  Boynton  v.  Kellogg,  3  Mass.  189,  it  was  held  that 
the  bad  character  of  the  plaintiff  at  the  time  of  the  promise  might 
be  given  in  evidence  in  bar  of  the  action,  if  unknown  at  the  time 
to  the  defendant.  Sedgwick  on  Damages,  386,  seems  to  think  such 
evidence  can  only  go  in  mitigation.  He  cites  Willard  v.  Hone,  7 
Cow.  22  ;  Palmer  v.  Andrews,  7  Wend.  142.  Paulkea  v.  Sellway,  3 
Espinasse,  236,  is  in  accordance  with  Boynton  v.  Kellogg,  and  re- 
ceived the  direct  approval  of  Parsons,  C.  J.,  in  that  case.  On 
principle,  a  woman  with  a  bad  character  ought  not  to  be  permitted 
to  sue  a  man  who  has  promised  to  marry  her  in  ignorance  of  her 
bad  character.  If  so,  such  a  woman  has  only  to  go  where  she  is 
unknown  to  obtain  such  a  promise — a  promise  which  never  would 
have  been  given  her  with  a  knowledge  of  her  bad  character.  Good 
character  is  a  condition  of  marriage ;  a  woman  who  receives  such 
a  pi*omise  is  held  to  warrant  this,  and  this  can  only  be  waived  by 
the  defendant  himself.  If  he  promises,  knowing  the  existence  of 
a  bad  character,  or  if  he  continues  his  intercourse  after  being 
informed  of  it,  he  must  be  held  by  his  promise,  as  he  has  waived 
all  objections  on  the  score  of  character.  Snowman  v.  Wardwell, 
32  Maine,  275.  So,  a  bad  character  acquired  after  the  promise, 
may  be  given  in  evidence  in  mitigation  of  damages,  unless  that 
character  grew  out  of  the  misconduct  of  the  defendant  himself 
with  the  plaintiff.  The  following  will  answer  as  a  form  where 
previous  bad  character  is  the  ground  of  defense : 

115.  AVERMENT  OP  BAD  CHARACTER. 

{Begin  as  in  114  :)  because  he  saith  that,  at  the  time  of  making 
tin'  promise,  mentioned  in  the  said  petition,  the  said  plaintiff  was 
generally  reported  and  believed  among  her  neighbors  to  have  been 
an  unchaste  woman;  of  which  the  said  defendant  was,  at  the 
time  of  making  said  promise,  wholly  ignorant ;  wherefore,  as  soon 
as  he  was  informed  thereof,  the  said  defendant  refused,  etc.  (as  in 
last  form.) 

Answers  in  Tort. 

116.    GENERAL    DENIAL. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  Baid  A  B,  plaintiff,  saith  that  he  is  not  guilty  of  the 
said  supposed  grievances  above,  in  said  petition,  laid  to  his  charge, 
or  any,  or  either  of  them,  or  any  pari  thereof,  in  manner  and  form 
as  the  said  plaintiff  hath,  in  said  petition,  complained  against  him ; 
and  of  tins  the  said  defendant  puts  himself  upon  the  country. 


686  FORMS  OF  ANSWERS. 


117.  GENERAL  DENIAL  BY  SEVERAL  DEFENDANTS. 

And  the  said  C  D,  E  F,  G  II,  and  J  K,  defendants,  now  come, 
and  for  answer  to  the  petition  of  the  said  A  B,  plaintiff,  say  that 
they  are  not,  nor  is  either  of  them,  guilty  of  the  said  supposed 
grievances  and  wrongs  above  laid  to  their  charge,  or  any,  or  either, 
or  any  part  thereof,  in  manner  and  form  as  the  said  plaintiff  has 
thereof  complained  against  them;  and  of  this  they  put  themselves 
upon  the  country. 

118.  ADMISSIONS    OF    CERTAIN    DAMAGES    AND    DENIAL    OF    FURTHER 

LIABILITY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that,  as  to  the  said  first 
(second  and  third)  count  in  the  petition  of  said  plaintiff  mentioned, 
he  confesses  the  said  action  of  the  said  plaintiff,  as  to  the  said  sup- 
posed grievances  and  wrongs  in  those  counts  mentioned,  and  that 
said  plaintiff,  by  means  of  committing  the  said  grievances  and 
wrongs,  in  those  counts  of  the  said  petition  mentioned,  hath  sus- 
tained damage  to  the  amount  of  $  over  and  above  his  costs 
and  charges,  by  him  about  his  suit  in  this  behalf  expended  up  to 
the  time  of  filing  this  answer,  and  here  offers  to  said  plaintiff  a 
judgment  for  said  sum  so  confessed,  with  costs  up  to  the  time  of 
filing  this  answer;  and  the  said  defendant  further  saith  that  as  to 
the  other  counts  in  the  said  petition  mentioned,  he,  the  said  de- 
fendant, is  not  guilty  of  the  said  supposed  grievances  and  wrongs 
in  those  counts  mentioned,  or  any,  or  either  of  them,  or  any  part 
thereof,  in  manner  and  form  as  the  said  plaintiff  hath  thereof  com- 
plained against  him  ;  and  of  this  he  puts  himself  upon  the  country. 

119.  ADMISSION    OF    CAUSE    OF    ACTION   AND    OF    DAMAGES   TO   A   SUM 

SPECIFIED. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he,  the  said  defendant, 
confesses  the  said  cause  (or,  causes,  if  more  than  one  county  of  action 
of  the  said  plaintiff,  so  in  his  said  petition  set  forth,  and  that  the 
said  plaintiff,  by  means  of  the  committing  of  the  said  grievances 
and  wrongs  in  his  said  petition  mentioned,  hath  sustained  damages 
to  the  amount  of  8  over  and  above  his  costs,  in  and  about  his 

suit  now  expended ;  and  the  said  defendant  offers  that  the  court 
here  shall  render  judgment  therefor  against  this  defendant,  and  in 
favor  of  the  said  plaintiff;  and  the  said  defendant  further  saith 


FORMS   OP   ANSWERS.  .      687 


that  the  said  plaintiff  hath  not  sustained  damage  by  means  of  said 
grievances  and  wrongs  beyond  the  said  sum  of  8  ,  so  as  afore- 
said confessed  ;  and  of  this  he  puts  himself  upon  the  country. 

120.  ANOTHER  FORM  OF  GENERAL  DENIAL. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B.  plaintiff,  saith  that  he,  the  said  defendant, 
denies  the  truth  of  each  and  every  allegation  and  averment,  by  the 
said  plaintiff  in  his  said  petition  made  and  alleged,  and  of  each  and 
every  part  thereof,  in  manner  and  form  as  the  said  plaintiff  hath, 
in  his  said  petition,  complained  against  him  ;  and  of  this  he  puts 
himself  upon  the  country. 

Under  these  pleas  of  general  denial,  the  plaintiff  will  be  called 
upon  to  prove  the  averments  of  his  petition,  and  nothing  more. 
Nor  can  the  defendant,  under  these  pleas,  give  in  evidence  any 
matter  of  excuse  or  justification. 

In  what  were  actions  on  the  case,  the  defendant  can  not  now  give 
in  evidence  the  statute  of  limitations,  a  license,  or  an  adverse  enjoy- 
ment for  over  twenty  years.  All  these  matters  must  be  specially 
pleaded. 

Tracer. — The  same  is  true  in  regard  to  facts  constituting  what 
was  once  an  action  of  trover. 

Slander.— In  slander,  nothing  can  be  given  in  evidence,  under  a 
general  denial,  but  what  proves  the  non-existence  of  the  slander 
or  libel.  Were  the  words  spoken  ?  and  if  spoken,  were  they 
spoken  maliciously?  Words  maybe  spoken  under  such  circum- 
stances as  not  to  be  maliciously  spoken,  in  the  eye  of  the  law.  So 
one  may  show  that  the  words  were  spoken  or  the  libel  published 
in  good  faith,  in  the  discharge  of  a  public  or  private  duty,  legal  or 
moral,  or  in  the  prosecution  of  his  own  rights  or  interests.  Any- 
thing said  or  written  by  a  master  concerning  the  character  of  a 
servant,  or  clerk,  etc.,  who  has  been  in  his  employment,  words  used 
in  the  course  of  legal  or  judicial  proceedings,  and  publications 
made  in  the  ordinary  mode  of  parliamentary  proceedings,  petitions 
to  the  government,  or  to  the  legislature,  or  to  the  secretary  at  war. 
or  other  departments  of  the  government,  for  the  redress  of  any 
grievance,  are  privileged  communications,  and  not  actionable  libels, 
unless  prompted  by  express  malice,  and  without  probable  cause  for 
making  the  charge,  whatever  it  may  be.  This  is  matter  which 
comes  in  issue  under  a  general  denial.  1  Phillies'  Bv.  251  ;  Wright 
v.  Woodgate,  t  Cromp.  Mee.  &  Bob.  573;  Child  v.  Affleck,  it  Dam. 


6S8  FORMS   OP    ANSWERS. 


6  Cross.  401] ;  Hodgson  v.  Scarlett,  1  Barn.  &  Aid.  247  ;  Fairman  v 
Ives.  :>  Barn  &  Aid.  642  ;  White  v.  Nichols  et  al.,  3  How.  U.  S.  2GG  ; 
Flint  r.  Pike.  4  B.  &  C.  481. 

Circumstances  which  go  to  mitigate  the  damages  may  be  given 
in  evidence,  either  under  a  general  denial,  or  on  a  failure  to  prove 
a  justification,  or  on  an  inquiry  of  damages  on  a  default.  Circum- 
stances tending  to  create  in  the  mind  of  the  defendant  a  belief  of 
this  charge  may  bo  received.  Wilson  v.  Apple,  2  Ohio,  270.  So 
the  defendant  may  prove  that  the  plaintiff  was  under  general  sus- 
picion of  having  been  guilty  of  the  charge  imputed.  So  also  he 
may  give  evidence  of  the  general  bad  character  of  the  plaintiff. 
Dowitt  v.  Greenfield,  5  Ohio,  225.  So  on  a  charge  of  perjury,  the 
defendant  can  not  give  in  evidence  the  plaintiff's  character  for 
truth  and  voracity  ;  it  must  be  confined  to  his  general  character, 
lb. ;  Fisher  v.  Patterson,  14  Ohio,  418.  Vide  also  Haywood  o.  Fos- 
ter, 16  Ohio,  88;  McLaughlin  v.  Bussell,  17  Ohio,  475;  Stearns  v. 
Cox,  lb.  590. 

Trespass. — Not  guilty  under  the  code  puts  in  issue  the  plaintiff's 
possession  of  real  estate,  and  his  title  to  the  personal  property,  and 
the  injury  committed  by  the  defendant  to  the  same,  and  the  dam- 
age sustained.  The  right  of  possession  to  real  estate  is  directly  in 
issue,  and  any  evidence  which  shows  that  the  plaintiff  was  not,  at 
the  time  of  the  trespass,  entitled  to  the  possession  is  admissible  ;  be- 
cause such  evidence  falsifies  the  petition,  by  showing  that  the 
defendant  did  not  break  the  close  of  the  plaintiff,  as  stated  in  the 
petition.  4  Phillips'  Ev.  191;  Argent  v.  Durrant,  8  Term,  403 ; 
Butcher  v.  Butcher,  7  Barn.  &  Cress.  402 ;  Parlaman  v.  Parlaman, 
1  Penn.  269.  But  evidence  that  the  locus  in  quo  is  a  public  or  pri- 
ate  road  is  not  admissible.  Saunders  v.  Wilson,  12  Wend.  338; 
Babcock  v.  Lamb,  1  Cowen,  238;  Speer  v.  Bicknell,  5  Mass.  125; 

7  lb.  385,  But  all  facts  which  admit  the  trespass,  and  seek  to  jus- 
tify or  discharge  it,  must  be  pleaded,  as  license,  defects  of  fences, 
right  of  common  way,  or  other  easement ;  that  he  entered  to  take 
implements,  or  cattle,  or  in  aid  of  an  officer  executing  process,  or 
to  remove  a  nuisance.     4  Phillips'  Ev.  191. 

In  trespass  for  taking  goods,  defendant  may  prove,  under  the 
general  issue,  that  he  is  entitled  to  the  property.  4  Phillips'  Ev. 
192. 

When  it  should  be  pleaded. 

A  general  denial  may  be  interposed,  whenever  the  defendant  on 
the  whole  case  can  deny  that  he  is  guilty.  It  is  not  necessary  that 
every  averment  should  be  untrue  ;  it  is  enough  if  ho  is  not  guilty 


FORMS   OF    ANSWERS.  6S9 


as  the  plaintiff  hath  declared.  Were  this  not  the  practice,  infinite 
difficulties  must  arise.  A  party  in  slander  could  not,  in  case  of 
privileged  communications,  make  his  defense  without  a  special 
traverse  of  the  malice,  and  when  so  specially  traversed,  his  traverse 
would  only  amount  to  a  general  denial.  Nor  is  the  oath  any  ob- 
jection to  this  use  of  the  general  denial ;  because  the  oath  is  only 
to  the  truth  of  the  plea  or  answer  ;  and  if  on  any  special  traverse 
the  defendant  would  be  entitled  to  a  verdict,  he  will  be  equally  en- 
titled to  a  verdict  on  a  general  traverse,  and  hence  his  general 
denial  will  be  found  true. 

The  plea  of  general  issue  will  be  as  above  given.  Accord  and 
satisfaction  and  arbitrament  and  award  can  be  easily  adapted  to  this 
form  of  action  from  the  forms  given  under  pleadings  on  contract. 
The  only  change  will  be  in  describing  the  cause  of  action.  Instead 
of  saying  "  contract,"  the  form  can  be  varied  so  as  to*  describe  the 
grievance;  <//></  wrongs  in  said  petition  described,  and  to  aver  it  as  a 
discharge  and  satisfaction  of  all  damages  sustained,  by  reason  of 
the  committing  of  the  said  grievances  and  wrongs. 

121.   SATISFACTION   BY  ONE   OF   TWO   JOINT   TRESPASSERS,  AFTER  SUIT 

BROUGHT. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  further  to  prosecute  his  said  action  ;  because  ho  says  that  the 
said  supposed  trespasses  and  wrongs,  in  said  petition  mentioned, 
were  committed  by  this  defendant  jointly  with  one  ,  and  that 

after  the  commencement  of  this  action,  and  before  the  filing  of 
this  answer,  to  wit,  on  the         day  of  ,  a.  d.  18     ,  it  was  agreed 

between  the  said  plaintiff  and  the  said  that  the  said 

should  pay  to  the  said  plaintiff,  and  the  said  plaintiff  should  re- 
a  certain  sum,  to  wit,  the  sum  of  %  ,  {the  sum  paid,)  in 
satisfaction  and  discharge  of  the  said  supposed  trespasses,  and  of 
all  damages  by  the  said  plaintiff  sustained  by  reason  of  the  com- 
mitting  thereof,  and  of  all  costs  by  the  said  plaintiff  incurred  in 
prosecuting  his  said  action;  and  the  said  defendant  further  saith 

that  the  said  ,  in  pursuance  of  said  agreement,  did  then  pay 

id  plaintiff  the  said  sum  of  8  ,  and  he,  the  said  plaintiff, 
,|j,|  then  accept,  the  same,  in  lull  satisfaction  and  discharge  of  the 
said  trc  |  md  of  all  damages  and  costs  as  aforesaid;  and  this 

he  is  rea<ly  to  make  appear. 
vol.  i — 44 


GOO  FORMS   OP   ANSWERS. 


This  form  can  be  easily  adapted  to  a  satisfaction  made  by  one 
joint  trespasser  before  suit,  or  by  one  who  is  a  party  to  the  suit. 
Damages  against  joint  trespassers  are  joint,  and  a  satisfaction  by 
one  discharges  all,  whether  so  intended  or  not.  The  party  can  not 
discharge  one  without  discharging  all.  So  a  note  payable  at  a 
future  day,  given  by  one  joint  trespasser,  and  received  by  the 
plaintiff  as  a  satisfaction  as  to  him  alone,  is  yet  a  discharge  of  all. 
Ellis  v.  Bitzer,  2  Ohio,  80 ;  Wright  v.  Lathrop,  lb.  33,  and  the  cases 
cited  in  the  argument  of  J.  C.  Wright. 

122.    SON   ASSAULT   DEMESNE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action ;  *  because  he  saith  that  the  said  plaint- 
iff, just  before  the  time  when  the  said  plaintiff  claims  that  this 
defendant  committed  the  said  supposed  assault  and  battery  on 
hirn,  the  said  plaintiff,  to  wit,  on  the  day  in  said  petition  named, 
with  force  and  arms  made  an  assault  upon  the  said  defendant,  and 
would  then  and  there  have  beat  and  ill-treated  the  said  defendant, 
if  he  had  not  immediately  defended  himself  against  the  said  plaint- 
iff; wherefore  he,  the  said  defendant,  did  then  and  there  defend 
himself  against  the  said  plaintiff,  as  he  lawfully  might  for  the 
cause  aforesaid;  and  in  so  doing  did  commit  the  said  supposed 
trespasses  in  the  said  petition  mentioned ;  and  this  he  is  ready  to 
make  appear. 

In  a  plea  of  son  assault  demesne,  a  wounding  may  be  justified  in 
self-defense,  in  the  above  form ;  but  when  the  law  prima  facie  only 
authorizes  an  arrest,  or  touching  of  the  person  by  a  molliter  manus 
imposuit,  if  a  wounding  also  be  attempted  to  be  justified,  the  occa- 
sion thereof  must  be  specially  stated,  as  in  the  case  of  an  arrest 
under  process  ;  a  resistance  or  attempt  to  rescue  must  be  stated  as 
in  1  Saund.  206,  note  1 ;  8  Term,  78,  200.  In  defense  of  the  per- 
son, a  battery  may  be  justified.  2  Salk.  640  ;  1  Ld.  Kaym.  177  ;  7 
Moore,  35;  Likes  v.  Van  Dyke,  17  Ohio,  454. 

In  defense  of  property,  the  defendant  must  set  forth  that  the 
plaintiff  was  on  his  land,  or  was  taking  his  property,  that  he  asked 
him  to  leave,  that  he  refused,  that  he  gently  laid  hands  on  him, 
that  he  resisted  and  assaulted  the  defendant,  and  that,  defending 
himself  against  said  plaintiff  so  assaulting  him,  ho  committed  the 
battery  and  wounding  complained  of.  8  Term,  78  ;  Comyn's  Dig., 
Pleader,  3  M.  15;  Ford  v.  Logan,  2  Marsh.  315;  Mcllvoy  v.  Cock- 


FORMS   OP   ANSWERS.  091 


ran,  2  lb.  276 ;  Bobinson  v.  Hawkins,  4  B.  Mon.  136 ;  Sampson  v. 
Henry,  11  Pick.  379. 

123.    SAME — ANOTHER   FORM. 

{Follow  122  to  * ;)  because  be  saith  that  the  said  plaintiff  did 
unlawfully  enter  the  dwelling-house,  (or,  close,  barn,  store,  shop, 
inn,  etc.,  as  the  case  may  be,)  of  the  said  defendant,  on  the  said  . 
day  of  ,  A.  D.  18     ,  situate  in  the  township  of  ,  in  the 

county  of  ,  and  was  then  and  there  unlawfully  making  a 

great  noise,  (or,  doing  any  other  act,  as  the  case  may  be,)  and  that 
the  said  defendant,  as  he  lawfully  might,  requested  the  said  plaint- 
iff to  leave  his  said  dwelling-house,  (or,  close,  barn,  shop,  etc.,) 
which  the  said  plaintiff  then  and  there  neglected  and  refused  to  do 
for  an  unreasonable  length  of  time,  and  that  thereupon  the  said 
defendant  gently  laid  his  hands  upon  the  said  defendant,  to 
remove  him,  the  said  plaintiff,  from  the  dwelling-house,  (or,  close, 
shop,  barn,  store,  inn,  etc.,)  of  him,  the  said  defendant,  and  that 
thereupon  the  said  plaintiff  resisted  the  said  defendant,  in  so 
removing  the  said  plaintiff,  and  then  and  there  made  an  assault 
on  him,  the  said  defendant,  and  would  then  and  there  have  beaten 
and  ill-treated  the  said  defendant,  if  he  had  not  immediately  de- 
fended himself  against  the  said  plaintiff;  wherefore  he,  the  said 
defendant,  did  then  and  there  defend  himself  against  the  said 
plaintiff,  as  he  lawfully  might,  for  the  cause  aforesaid,  and  in  so 
doing  did  commit  the  said  supposed  trespasses,  in  said  petition 
mentioned  ;  and  this  he  is  ready  to  make  appear. 

This  form  can  easily  be  adapted  to  all  cases  of  a  like  character. 
So  where  one  gentlj-  lavs  hands  on  one,  to  preserve  the  peace,  and 
the  party  assaults  him.  he  may  justify  a  battery.  In  such  case,  the 
fact  that  the  plaintiff  was  committing  a  breach  of  the  peace  must 
be  specially  stated;  as  that  the  said  plaintiff  was  about  to  assault 
one  ,  and  that,  to  prevent  said  assault,  the  defendant  gently 

laid  his  hands  upon  him;  or,  that  he  and  others  were  making  a 
great  noise  in  a  public  place  to  the  disturbance  of  the  peace. 

124.   SON    ASSAULT    IN    DEFENSE   OP  SON,   ETC. 

(Follow  122  to  *;)  because  he  saith  that  the  said  plaintiff1,  just 
before  the  committing  of  the  said  supposed  trespasses  in  the  said 
petition  mentioned,  and  al  the  time  in  said  petition  named,  unlaw- 
fully made    an    a—:. nil    upon    one  ,  he.  the  said  ,  being 

the  son,  (father,  wife,  daughter;  servant,  mother,  or,  master,  as  the 


G02  FORMS   OF   ANSWERS. 


case  may  be,~)  of  the  said  defendant,  and  would  then  and  there  have 
beaten  and  ill-treated  him,  the  said  ,  if  he,  the  said  defend- 

ant, had  not  immediately  defended  the  said  ,  wherefore  he, 

the  said  defendant,  did  then  and  there  defend  the  said  ,  so 

being  the  son  of  the  said  defendant,  and  in  so  doing  committed  the 
said  supposed  trespasses,  in  the  said  petition  set  forth ;  and  this  he 
is  ready  to  make  appear. 

125.    PLAINTIFF  REMOVED  FROM  RAILROAD  CAR,  BECAUSE  HAVING  NO 

TICKET. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him  ;  because  he  saith  that  the 
said  defendant  was,  before  and  at  the  time  when  the  said  griev- 
ances were  committed,  the  conductor,  and  had  charge  of  a  certain 
passenger  train  on  the  railroad  of  the  E.  E.  Co.,  running 

from  to  ,  and  that  it  was  one  of  the  rules  and  regula- 

tions of  said  E,  E.  Co.,  that  no  person  should  be  permitted 

to  be  and  remain  on  such  train,  or  in  the  cars  thereof,  without 
having  a  ticket  therefor,  duly  obtained  of  the  authorized  agents 
and  servants  of  the  said  E.  E.  Co.;  and  the  said  defendant 

further  saith  that  the  said  plaintiff  was  then  on  the  said  train,  and 
in  one  of  the  cars  thereof,  without  having  a  ticket  therefor  as 
aforesaid ;  and  that  the  said  defendant  then  and  there  requested 
the  said  plaintiff  to  leave  the  said  train  and  car,  which  the  said 
plaintiff  refused  to  do ;  whereupon  the  said  defendant  then  and 
there  gently  laid  his  hands  upon  the  said  plaintiff,  and  removed 
him  from  the  said  train  and  car,  doing  no  unnecessary  violence,  as 
he  lawfully  might  do ;  which  is  the  same  trespass  complained  of 
by  the  said  plaintiff  in  his  said  petition ;  and  this  the  said  defend- 
ant is  ready  to  make  appear. 

It  has  been  repeatedly  decided  that  a  railroad  conductor  has  the 
same  rights  of  keeping  order  or  removal  as  the  captain  of  a  vessel, 
or  the  keeper  of  a  tavern,  etc.  This  form  contains,  it  is  believed, 
all  that  is  necessary  to  be  inserted  in  such  an  answer.  It  must  be 
varied  to  suit  the  facts  of  the  case  ;  as  a  person  may  be  removed 
for  disorderly  conduct,  or  for  not  complying  with  any  other  rea- 
sonable rules  of  the  company. 


FORMS    OF   ANSWERS.  693 


126.    JUSTIFICATION   BY    CAPTAIN   OF    VESSEL,    FOR   DISORDERLY    CON- 
DUCT OF  PLAINTIFF. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B.  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  thereof  against  this  defendant;*  because 
he  saith  that,  as  to  the  assaulting,  beating,  and  ill-treating  the  said 
plaintiff,  be,  the  said  defendant,  was.  at  the  time  of  the  commission 
of  the  sairl  assaulting,  beating,  and  ill-treating,  captain  of  a  certain 
ship  or  vessel,  (or.  steamboat.)  and  that  the  said  plaintiff,  with 
other  persons,  were  passengers  on  board  of  said  ship  or  vessel,  (or, 
steamboat.)  and  that  the  said  plaintiff  was  then  on  board  of  said 
ship  or  vessel,  making  a  great  noise  and  disturbance,  and  fighting 
with  a  certain  other  person,  and  was  striving  to  beat  and  wound 
the  said  person  ;  wherefore  the  said  plaintiff,  for  the  preservation 
of  the  peace,  and  to  preserve  due  order  on  said  ship  or  vessel,  and 
to  separate  the  said  plaintiff  and  other  person  so  fighting  together, 
and  to  prevent  the  said  plaintiff  from  beating,  wounding,  and  ill- 
treating  such  other  person,  as  he  would  otherwise  have  done,  then, 
a-  Buch  captain,  gently  laid  his  hands  upon  the  said  plaintiff,  as  he 
lawfully  might,  fur  the  cause  aforesaid  ;  which  are  the  said  assault- 
ing, beating,  and  ill-treating,  whereof  the  said  plaintiff  hath,  in  his 
said  petition,  complained  against  him  ;  and  this  he  is  ready  to 
make  appear. 

This  form  was  held  sufficient  in  ISToden  v.  Johnson,  2  Eng.  L.  & 
Eq.  201.  It  was  held  not  necessary  to  state  the  name  of  the  per- 
son with  whom  plaintiff  was  fighting. 

127.    TO   PRESERVE    THE   PEACE. 

(Proceed  as  above  to*;)  because  he  sa}-s  that  the  said  plaintiff  and 
one  ,  at  the  said  time  and  place  where  said  supposed  trespasses 

are  averred  to  have  been  committed,  were  fighting  together,  and 
striving  with  force  to  beat  and  wound  each  other,  against  the  peace  : 
wherefore  the  said  defendant, being  then  and  there  present,  for  the 
j  ervation  of  the  public  peace,  and  that  the  said  plaintiff  and 
might  not  hurt  each  other,  ami  in  order  to  separate  and  part 
them,  then  and  there  gently  laid  his  hands  upon  the  said  plaintiff, 
a-  In-  lawfully  might  do  for  the  cause  aforesaid  ;  which  are  the  said 
whereof  the  -aid  plaintiff  has  complained  against  this 
defendant)  and  this  he  is  ready  to  make  appear. 


G04  FORMS   OF   ANSWERS. 


If  there  was  also  a  wounding,  the  plea  must  go  further,  and  show 
a  resistance  and  an  assault  on  the  defendant,  as  in  the  form  but 
one  preceding.  Where  the  petition  charges  a  wounding,  when  in 
fact  there  was  none,  the  defendant  may  plead  that,  as  to  the  wound- 
ing, he  is  not  guilty,  and  as  to  the  assault  and  battery,  that  he 
gently  laid  his  hands  on  the  said  plaintiff,  to  prevent  or  stop  a 
breach  of  the  peace.     Vide  3  Chitty  PL  1071,  and  notes. 

128.  CORRECTION  OF  AN  APPRENTICE. 

(Proceed  as  above  to  * ;)  because  he  says  that,  before  and  at  the 
time  of  the  committing  of  the  said  supposed  trespasses,  in  the  said 
plaintiff's  petition  complained  of,  the  said  plaintiff  was  the  appren- 
tice of  the  said  defendant,  in  his  trade  and  business  of  a  ,  and 
then  and  there  behaved  and  conducted  himself  contumaciously 
toward  the  said  defendant,  and  refused  to  obey  his  lawful  com- 
mands, relating  to  his  duty  as  such  apprentice,  whereupon  he,  the 
said  defendant,  then  and  there  moderately  corrected  him,  the  said 
plaintiff,  for  his  said  misbehavior ;  which  are  the  said  assaulting 
and  beating,  whereof  the  said  plaintiff  has  in  his  said  petition  com- 
plained ;  and  this  he  is  ready  to  make  appear. 

129.    CORRECTION   BY   A    TEACHER. 

(Proceed  as  above  to  * ;)  because  he  says  that  he,  the  said  defend- 
ant, at  and  before  the  time  of  the  committing  of  the  trespasses  in 
said  petition  set  forth,  was  the  teacher  of  a  school,  and  that  the 
said  plaintiff  was  a  pupil  and  scholar  of  the  said  defendant  in  his 
said  school ;  and  that  the  said  plaintiff,  so  being  a  scholar  in  said 
school,  did  then,  in  said  school,  and  in  school-hours,  conduct  him- 
self contumaciously,  and  in  a  disorderly  manner,  and  contrary  to 
the  reasonable  requirements  of  the  said  defendant,  and  did  then 
and  there  refuse  to  obey  the  reasonable  and  lawful  commands  of 
the  said  defendant,  relating  to  his,  the  said  plaintiff's,  duty  as 
such  scholar ;  whereupon  he,  the  said  defendant,  then  and  there 
moderately  corrected  the  said  plaintiff  for  such  his  misbehavior; 
which  are  the  said  trespasses  of  which  the  said  plaintiff  has,  in  his 
said  petition,  complained  against  this  defendant;  and  this  he  is 
ready  to  make  appear. 

If.  there  was  also  a  wounding,  and  this  arose  from  the  scholar's 
making  an  attack  on  the  teacher,  the  answer  should  probably  state 
that  the  plaintiff  resisted  the.  defendant  in  such  moderate  correc- 
tion, and  assaulted  him,  and  would  have  beaten  him  if  he  had  not 


FORMS    OF    ANSWERS.  G95 


defended  himself.     Previous  forms  will  show  how  this  ought  to  be 

stated. 

130.    MODERATE   CORRECTION   OF   A   SEAMAN. 

{Proceed  as  above  to  * ;)  because  he  says  that  the  said  defend- 
ant, before  and  at  the  time  of  the  committing  of  the  trespasses  by 
the  said  plaintiff  in  his  said  petition  mentioned,  was  master  of  a 
certain  vessel,  (or,  ship,  or,  steamboat,)  called  the  ,  and  the 

said  plaintiff  was  then  a  mariner,  (or,  hand,)  in  and  belonging  to 
the  said  vessel ;  and  the  said  defendant  further  says  that  the  said 
plaintiff,  just  before  the  said  time  of  the  committing  of  said 
trespasses,  neglected  his  duty  as  such  mariner  in  and  on  board  of 
said  vessel,  and  behaved  and  conducted  himself  in  a  mutinous,  dis- 
orderly, and  improper  manner  on  board  thereof;  whereupon  the 
said  defendant,  as  such  master  of  said  vessel,  for  the  preservation 
of  discipline  and  order  on  board  thereof,  did  then  and  there 
moderately  chastise  and  correct  the  said  plaintiff  for  his  said 
neglect  of  duty  and  misconduct;  and  for  the  same  purpose  he,  the 
said  defendant,  did  then  and  there  put  the  said  iron  shackles  upon 
the  hands  of  the  said  plaintiff,  and  did  imprison  him  for  the  space 
of  time  in  said  petition  mentioned;  which  are  the  same  supposed 
trespasses  whereof  the  said  plaintiff  hath  in  his  said  petition 
complained;  and  this  he  is  ready  to  make  appear. 

131.    TURNING   PLAINTIFF   OUT   OF   DWELLING-IIOUSE. 

(Proceed  as  above  to  *;)  because  he  says  that  the  said  defendant, 
before  and  at  the  time  of  the  committing  of  the  said  trespasses  in  the 
said  plaintiff's  petition  mentioned,  was  lawfully  possessed  of  a  cer- 
tain dwelling-house,  situate  and  being  at  ,  and  being  so  possessed 
thereof,  the  said  plaintiff,  just  before  the  commission  of  said  tres- 
passes, and  on  the  day  thereof,  was  unlawfully  in  the  said  dwelling- 
house,  and  making  a  great  noise  and  disturbance  therein,  and  con- 
,  tinned  therein,  making  such  noise  and  disturbance,  without  the 
license  and  against  the  will  oi  this  defendant ;  and  thereupon  the 
said  defendant  then  and  there  requested  the  said  plaintiff  to  cease 
making  his  said  noise  and  disturbance,  and  to  depart  from  and  out 
lid  dwelling-house,  which  the  said  plaintiff  then  wholly  refused 
to  do;  whereupon  the  said  defendant,  in  defense  of  his  possession 
of  the  aaid  dwelling-house,  gently  laid  his  bands  upon  the  said 
plaintiff,  in  order  to  remove,  and  did  then  and  there  remove,  the 
said  plaintiff  from  the  said  dwelling-house,  and  in  so  doing,  he 
committed  the  said  supposed  trespasses  by  the  said  plaintiff  in  bis 
petition  mentioned  j  and  this  he  is  ready  to  make  appear. 


GOG  FORMS   OF   ANSWERS. 


This  form  will  answer  for  any  case  of  removal,  whether  from  a 
shop,  store,  inn,  or  other  building-.  In  ease  of  an  inn,  it  must  be  so 
described.      Vide  3  Chitty  PL  1074;  Comyn's  Dig.,  Pleader,  3  M. 

1G;  S  Term,  200,  78;  1  Saund.  78,  80,  n.  3. 

132.    TO   PREVENT    ENTRY    IN    A    HOUSE. 

(Proceed  as  above  to  * ;)  because  he  says  that  he,  the  said  defend- 
ant, before  and  at  the  time  of  the  committing  the  said  supposed 
trespasses  in  said  petition  mentioned,  was  lawfully  possessed  of  a 
certain    dwelling-house,    (shop,   store,    etc.,)    situate   at  ,  in 

which  he,  the  said  defendant,  did  then  dwell,  (or  was  engaged  in 
his  business,  whatever  it  may  be,  carried  on  in  said  building,)  and 
that,  the  said  defendant  being  so  possessed  thereof,  the  said 
plaintiff,  just  before  the  committing  of  the  said  supposed  trespass, 
with  force  and  arms,  and  with  a  strong  hand,  did  attempt  and  en- 
deavor, forcibly  and  unlawfully,  to  break  into  and  enter  the  said 
dwelling-house,  (or,  shop,  etc.,)  of  the  said  defendant,  without  the 
license  and  against  the  will  of  the  said  defendant,  whereupon  the 
said  defendant  did  then  and  there,  in  order  to  preserve  the  peace- 
able possession  thereof,  resist  and  oppose  such  entrance  of  the  said 
plaintiff  into  his  said  dwelling-house;  and  in  so  doing,  did  commit 
the  said  supposed  trespass  in  said  petition  complained  of;  and  this 
he  is  ready  to  make  appear. 

A  forcible  attempt  to  enter  will  justify  a  battery  and  wounding. 
8  Term,  78.  If  he  does  not  use  force  to  enter,  then  the  answer 
will  aver  notice  to  plaintiff  not  to  enter,  and  a  request  to  leave; 
on  refusal,  a  gentle  laying  on  of  hands,  and  a  using  of  force  then 
to  enter.  Where  the  entry  is  into  a  close,  instead  of  a  building, 
the  form  can  be  easily  adapted  to  such  a  case.  The  premises  must 
be  specially  described,  so  as  to  identify  them.  Vide  3  Chitty's  PL 
1075. 

133.      IMPRISONMENT     WITHOUT     PROCESS,     AGAINST     TWO,     ONE     AN 

OFFICER. 

And  now  come  the  said  C  D  and  E  F,  defendants,  and  for  an- 
swer to  the  petition  of  the  said  A  B,  plaintiff,  say  that  the  said 
plaintiff  ought  not  to  have  his  said  action  against  them;  because 
they  say  that,  before  and  at  the  time  of  the  committing  of  the 
trespasses  in  said  petition  mentioned,  the  said  plaintiff,  with  force 
and  arms,  did  unlawfully  assault  the  said  C  D,  and  did  beat  and 
ill-treat  him,  the  said  C  D,  and  thereupon  the  said  C  D  then  and 


FORMS   OF   ANSWERS.  697 


there  cave  charge  of  the  said  plaintiff  to  the  said  E  F,  lie,  the 
said  E   F,  then  being  constable  within  and  for  the  township  of 

,   in  the  county  of  ,   (or,  sheriff,  marshal,  or,  police 

officer,  as  the  case  may  be,)  and  having  had  view  of  the  said  breach 
of  the  peace  so  committed  by  said  plaintiff  as  aforesaid,  and  re- 
quested the  said  E  F,  peace  officer  as  aforesaid,  to  take  the  said 
plaintiff  into  his  custody  and  carry  him  before  some  justice  of  the 
peace  in  and  for  the  said  county  of  ,  to  answer  the  premises, 

and  be  dealt  with  according  to  law;  and  that  the  said  E  F,  at  the 
request  of  the  said  C  D,  and  the  said  C  D,  in  the  aid  and  assist- 
ance of  the  said  E  F,  then  and  there  gently  laid  their  hands  on 
the  said  plaintiff,  in  order  to  take,  and  did  then  and  there  take,  the 
said  plaintiff  into  the  custody  of  the  said  E  F,  as  such  officer,  and 
kept  and  detained  bim  so  in  custody  until  the  said  plaintiff  after- 
ward, and  as  soon  as  conveniently  could  be,  was  carried  before 
one  ,  a  justice  of  the  peace  within  and  for  the  county  of 

,  aforesaid,  for  examination  concerning  the  premises,  and 
to  be  dealt  with  according  to  law,  and  on  that  occasion  the  said 
plaintiff  was  necessarily  imprisoned,  and  kept,  and  detained  in 
custody,  for  the  said  space  of  time  in  his  said  petition  named,  as 
he  lawfully  might  be,  for  the  cause  aforesaid,  which  are  the  said 
supposed  trespasses  in  petition  complained  of ;  and  this  he  is  ready 
to  make  appear. 

It  seems  that  it  must  be  averred  that  the  officer  saw  the  commis- 
sion of  the  offense;  still  he  may  arrest  to  prevent  a  felony,  or  an 
offense  whereof  the  punishment  is  confinement  in  the  penitentiary, 
or  capital.  2  Esp.  540;  3  Hawk.  PI.  Cr.  174 ;  1  Esp.  294  ;  3  Camp. 
420.  A  constable  may,  without  warrant,  arrest  a  breaker  of  the 
>,  when  it  is  done  in  his  presence.  Taylor  v.  Strong,  3  Wend. 
384;  Commonwealth  v.  Deacon,  8  S.  &  K.  47;  Mayo  v.  Wilson, 
1  X.  II.  53;  Commonwealth  v.  Hasting,  !»  Metcalf,  259.  But  an 
arrest  for  felony  may  be  justified  by  any  person,  without  warrant, 
if  in  fad  a  felony  has  been  committed.  Holley  v.  Mix,  3  Wend. 
350  ;  Wrexford  v.  Smith,  2  Root,  171  ;  Phillips  v.  Trull,  11  Johns. 
Wakely  /;.  llarte,  6  Bhm.  316. 

134.    JUSTIFYING    IMPRISONMENT   ON   SUSPICION   OF    FELONY. 

And  tie'  said  C  1',  defendant,  now  conies,  and  for  answer  to  tho 

petition  of  the  sai<l  A    B,  plaintiff,  saith  that  the  said  plaintiff 

a    not   to  have  his  said  action  against  him;  because  In-  saith 

that,  before  and  at  the  time  of  the  committing  the  trespasses  in 


G98  FORMS   OF   ANSWERS. 


the  said  petition  mentioned,  the  horse  of  one  TV  X  hadjbeen  felo- 
niously stolen,  taken,  and  rode  away,  to  wit,  on  the  day  of  , 
a.  n.  18     ,  at  the  county  of  ,  and  that  the  said  plaintiff,  just 

before,  and  on  the  same  evening  preceding  the  night  in  which 
said  felony  had  been  committed,  was  seen  in  and  around  the  prem- 
ises and  barn  of  the  said  W  X,  where  the  said  horse  then  was, 
and  clandestinely  examining  the  same;  and  that  the  next  morning 
thereafter,  the  said  plaintiff  had  left,  and  gone  to  parts  unknown, 
and  that  said  horse  was  stolen  the  same  night,  and  that  it  wTas  and 
had  been  told  to  this  defendant  that  said  plaintiff  had  been  seen 
riding  the  said  horse,  so  as  aforesaid  feloniously  stolen  and  rode 
away  ;  wherefore  the  said  defendant,  having  good  and  probable 
cause  of  suspicion,  and  greatly  suspecting  said  plaintiff  of  stealing 
said  horse  of  the  said  W  X,  did  gently  lay  his  hands  on  the  said 
plaintiff,  and  give  him  in  charge  to  one  B  F,  who  was  then  and 
there  a  constable  within  and  for  the  county  of  ,  and  then 

and  there  requested  the  said  constable  to  take  said  plaintiff  into 
his  custody,  and  convey  him  before  some  justice  of  the  peace 
within  and  for  the  said  county  of  ,  (county  where  said  horse  was 
stolen,)  to  be  examined  by  such  justice  touching  the  premises,  and 
to  be  further  dealt  wTith  according  to  law  ;  and  the  said  E  F  did 
then  and  there,  at  the  request  of  the  said  defendant,  gently  lay  his 
hands  on  the  said  plaintiff,  take  him  into  his  custody,  and  as  soon 
as  conveniently  could  be,  the  said  plaintiff  was  taken  in  custody 
before  one  ,  the  said  then  being  a  justice  of  the  peace 

within  and  for  the  said  county  of  ,  to  be  examined  touch- 

ing the  premises,  and  was  then  and  there  kept  in  custod}7,  by  order 
of  the  said  justice  of  the  peace,  until  the         day  of  ,  A.  d. 

18  ,  when  he,  the  said  plaintiff,  was  examined  before  the  said 
justice  touching  the  premises,  and  was  then  and  there  discharged 
from  custody,  by  order  of  said  justice  of  the  peace;  by  means  of 
which  said  several  premises  the  said  plaintiff  was  imprisoned  for 
the  said  time  by  him  in  his  said  petition  set  forth  ;  and  which  are 
the  same  trespasses  in  said  petition  mentioned  and  complained  of; 
and  this  he  is  ready  to  make  appear. 

The  answer  must  show  the  grounds  of  suspicion,  and  these 
should  be  set  forth  as  they  are.  4  Taunt.  34  ;  Wasson  v.  Canfield, 
G  Blackf.  406.  A  private  person  can  not  justify  an  arrest  without 
warrant,  unless  a  crime  has  been  committed.  An  officer  may  justify 
acting  upon  information,  though  it  turn  out  that  no  crime  has  been 


FORMS   OF   ANSWERS.  699 


committed.  Holley  v.  Mix,  3  Wend.  350  ;  Wakely  v.  Harte,  6  Binn, 
316 ;  Commonwealth  v.  Deacon,  8  S.  &  R.  49. 

135.    ARREST    UNDER   A   WRIT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him  ;  because  he  saith 
that,  before  and  at  the  time  of  the  committing  of  the  said  tres- 
passes in  said  petition  mentioned,  he,  the  said  defendant,  was  a 
constable  within  and  for  the  township  of  ,  in  the  county  of 

,  and  that,  being  such  constable,  a  certain  warrant,  issued 
by  one  ,  under  his  hand  and  seal,  the  said  then  being 

a  justice  of  the  peace  within  and  for  the  said  township  of  , 

in  the  county  of  ,  and  directed  to  any  constable  of  said  , 

came  into  the  hands  of  this  defendant  to  be  executed  ;  whereby 
this  defendant,  as  such  constable,  was  commanded  to  arrest  the 
said  plaintiff,  and  have  him  forthwith  before  said  justice,  or  some 
other  justice  of  the  peace  for  said  county  of  ,  there  to  answer 

to  the  charge  of  having  feloniously  stolen  and  carried  away  the 
goods  and  chattels  of  one  ,  to  the  value  of  ,  (the  writ  or 

warrant  must  be  set  out  according  to  its  effect.)  and  this  defendant 
further  saith  that,  by  virtue  of  the  said  warrant  so  issued,  he,  the  said 
defendant,  did  arrest  the  said  plaintiff,  and  had  him  in  his  custody 
until  lie,  as  soon  as  he  conveniently  could,  took  the  said  plaintiff 
before  the  said  justice  of  the  peace,  to  answer  to  the  complaint 
aforesaid,  as  will  appear  by  his  return,  duly  entered  on  the  said 
warrant,  (or,  writ,  etc..)  and,  in  so  doing,  he  committed  the  tres- 
is in  said  plaintiff's  petition  mentioned  ;  and  this  he  is  ready 
to  make  appear. 

If  the  party  was  not  examined  at  once,  but  was  imprisoned,  on 
the  older  of  the  justice,  the  plea  must  set  forth  the  order  and  mit- 
timus, by  virtue  of  which  the  imprisonment  was  continued.  The 
original  warrant  will  not  justify  an  imprisonment  after  a  continu- 
ance. This  can  only  be  done  in  virtue  of  a  mittimus  issued  by  the 
justice  for  his  safe-keeping,  until  the  time  to  which  the  case  is  con- 
tinued. 

This  form  can  easily  be  made  to  suit  all  cases  that  may  arise. 

If  the  suit  is  against  the  party  who  made  the  complaint,  or  the 

justice,  the  answer  musl  se1  forth  the  making  of  the  affidavit,  as 

well  as  the  issuing  of  the  warrant  ;  for,  in  case  of  a  capias  ad  sat- 

iendum,  all  bu1  the  officer  receiving  the  writ,  and  those  acting 


'00  FORMS   OF    ANSWERS. 


under  him,  must  show  a  judgment  as  well  as  a  writ;  nor  will  the 
writ  justify  the  clerk  or  party  causing  the  issuing  of  an  execution. 
An  officer  is  justified  if  he  have  a  writ  not  void  on  its  face.  Taylor 
v.  Alexander,  G  Ohio,  1  1 1. 

136.    REMOVING   GOODS. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,, plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him  ;  because  he  saith 
that,  before  and  at  the  time  of  the  committing  of  the  trespasses  in 
said  petition  mentioned,  he,  the  said  defendant,  was  lawfully  pos- 
sessed of  a  certain  close,  situate  at  ,  in  the  county  of 
and  that  the  said  goods  and  chattels,  in  said  petition  mentioned, 
were  wrongfully  in  and  upon  the  said  close,  incumbering  the  same, 
and  doing  damage  there  to  the  said  defendant;  and  he,  the  said 
defendant,  seized  and  took  the  said  goods  and  chattels,  in  said  pe- 
tition named,  in  the  said  close,  and  removed  the  same  to  a  small 
and  convenient  distance,  and  there  left  the  same  for  the  use  of  the 
said  plaintiff,  doing  no  unnecessary  damage  thereto  on  the  occasion 
of  such  removal ;  which  are  the  same  supposed  trespasses  com- 
plained of  by  the  said  plaintiff  in  his  said  petition;  and  this  he  is 
ready  to  make  appear. 

Vide  form  for  removing  nuisance,  3  Chitty  PI.  1094. 

137.    KILLING   DOGS   WORRYING   SHEEP. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
said  petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that,  at  and  before  the  committing  of  the  said  trespasses  in  said 
petition  mentioned,  the  said  dog  of  the  said  plaintiff  was  found  by 
this  defendant  running,  worrying,  and  injuring  the  sheep  of  him, 
the  said  defendant,  (or  if  the  sheep  of  another,  so  aver,)  and  there- 
upon the  said  defendant  killed  the  said  dog  of  the  said  plaintiff,  so 
found  running,  worrying,  and  injuring  the  said  sheep,  as  he  law- 
fully might ;  and  this  he  is  ready  to  make  appear. 

Swan's  Stat.  328,  sec.  2.  It  shall  be  lawful  for  any  person  at  any 
time  to  kill  any  dog  which  may  be  found  running,  worrying,  or 
injuring  sheep.  The  dog  may  be  killed  by  any  person,  if  so  found 
running  sheep,  etc.,  and  he  may  follow  him  up  and  kill  him  at  any 


FORMS    OF    ANSWERS.  701 


time,  so  he  keeps  up  fresh  pursuit.  So  the  statute  has  in  practice 
been  expounded,  and  so  construed  in  our  courts  of  Common  Pleas. 

138.    REAL   ESTATE. 

And  the  said  C  D.  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him  :  because  he  saith  that  the 
said  defendant,  before  and  at  the  time  of  the  commission  of  the 
said  trespasses  in  said  petition  mentioned,  was  lawfully  possessed 
of  a  certain  garden,  (or,  close,  etc..)  situate  at  ,  in  the  county 

of  ,  and  that  the  trees  and  shrubs  growing  on  the  close  of  the 

said  plaintiff  next  adjoining  thereto,  grew  so  near  the  line  of  the 
garden  of  the  said  defendant,  that  the  limbs  and  branches  of  the 
said  trees  and  shrubs  overhung,  and  incumbered,  and  damaged 
the  garden  of  the  said  defendant  and  the  vegetables  growing 
therein  ;  wherefore  the  said  defendant  did  cut,  lop,  and  top  the 
said  branches  and  shrubs,  so  overhanging  and  damaging  the 
garden,  and  vegetables  therein,  of  the  said  defendant,  and  took 
and  carried  away  the  said  branches,  wood,  and  shi*ubs,  to  a  small 
and  convenient  distance,  and  there  left  the  same  for  the  said 
plaintiff';  which  are  the  same  supposed  trespasses  whereof  the  said 
plaintiff  has  thereof  complained  against  the  said  defendant;  and 
this  he  is  ready  to  make  appear. 

As  to  right  to  abate  a  private  nuisance,  vide  3  Bla.  Com.  5.  As 
to  right  to  cut  trees  overhanging  one's  land,  see  Boll.  394  ;  3  Bulstr. 
198;   Vin.  Abr.,  Trees,  E.,  and  Nuisance,  W.  2;  2  B.  &  C.  311. 

The  above  form  can  also  he  made  to  apply  to  a  public  nuisance. 
One  who  suffers  a  private  damage  from  a  nuisance,  may  abate  it. 
The  injury  must  be  an  existing  one.  Gates  v.  Blancoe,  2  Dana, 
158.  He  must  do  no  unnecessary  injury.  Public  nuisances  may 
also  be  abated  by  individuals.  Wetmore  v.  Tracy,  14  Wend.  250; 
ker  v.  Van  Ilensselacr,  15  Wend.  397  ;  Adams  v.  Beach,  G  Hill, 
271. 

139.   DEFECT   OF    FENCES. 

And  ili«-  -aid  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him;  because  he  saith 
that  hr.  tie-  said  defendant,  was  lawfully  possessed  of  a  certain 
close,  or  field,  situate  in  ,  in  said  county  of  ,  and  con- 

tiguous to,  and  next  adjoining  to,  the  said  close  of  the  said  plaint- 


"02  FORMS   OP   ANSWERS. 


iff;  and  that  there  was  a  partition  fence  between  the  close  of  the 
said  defendant  and  that  of  the  said  plaintiff,  and  that  the  said 
plaintiff  was  bound  in  law  to  keep  up  and  in  good  repair  the  north 
half  of  said  fence,  and  ought  to  have  so  kept  the  said  north  half 
of  said  fence  in  repair  and  sufficient;  and  the  said  defendant  says 
that,  the  said  plaintiff  did  not  keep  the  said  north  half  of  said 
fence  in  repair,  as  he  ought  to  have  done,  but,  on  the  contrary, 
suffered  the  same  to  become  ruinous,  fallen  down,  and  out  of  re- 
pair ;  and  that  the  said  defendant  had  his  said  cattle,  horses,  etc., 
in  his  said  close,  as  he  lawfully  might,  to  depasture  the  same ;  and 
that  the  said  cattle,  horses,  etc.,  of  the  said  defendant,  without  his 
knowledge  or  consent,  and  against  his  will,  escaped  through  the 
north  half  of  said  fence,  by  reason  of  its  being  so  out  of  repair, 
into  the  said  close  of  the  said  plaintiff ;  and  the  said  defendant,  as 
soon  as  he  had  notice  thereof,  entered  into  the  said  close  of  the 
said  plaintiff,  and  drove  out  of  said  close  the  said  cattle,  horses, 
etc.,  into  the  close  of  the  said  defendant,  doing  as  little  damage 
thereby  as  he  could ;  which  are  the  same  trespasses  mentioned  in 
the  petition  of  the  said  plaintiff;  and  this  he  is  ready  to  make 
aj^pear. 

Vide!  Taunt.  529;  Comyn's  Dig.,  Pleader,  3  M.  29 ;  2  Saund. 
285,  n.  4 ;  2  B.  &  C.  311  ;  Swan's  Stat.  427,  sec.  2 ;  Thayer  v.  Arnold, 
4  Metcalf,  589;  11  K  H.  241 ;  3  Kent  Com.,  3  ed.  438;  1  Cowen, 
79,  n. ;  Eust  v.  Low,  6  Mass.  90 ;  Comyn's  Dig.,  Droit,  M.  2.  The 
plea  is  only  available,  when  plaintiff  is  bound  to  keep  the  fence  in 
repair.     This  may  arise  from  contract,  prescription,  etc. 

140.    RIGHT    OF   WAT   TO    TRESPASS. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  said 
plaintiff  ought  not  to  have  and  maintain  his  aforesaid  action 
thereof  against  him ;  because  he  saith  that  one  was  the  owner 

in  fee  of  certain  land,  situate  at  ,  in  the  county  of  ,  and 

described  as  follows,  to  wit,  (here  describe  land  so  as  to  identify  it,) 
and,  as  such  owner  of  said  premises,  was  entitled  by  immemorial 
uses  to  a  right  of  way  over  the  said  premises  of  said  plaintiff,  men- 
tioned in  his  said  petition,  and  Avhere  said  pretended  trespass  is 
alleged  to  have  been  committed,  to  pass  and  repass,  on  foot,  and 
with  wagons,  carts,  and  horses,  from  his  said  land  to  a  public  high- 
way, across  the  premises  of  said  plaintiff,  for  the  more  convenient 
occupation  of  the  said  premises  of  said  ,  and  that  before  the 

commission  of  the  pretended  trespass  alleged  in  said  petition,  the 


FORMS   OP   ANSWERS.  703 


said  demised  said  premises,  with  its  appurtenances,  to  one 

,  and  that  the  defendant,  as  the  servant  of  the  said  , 

the  lessee  aforesaid,  did  pass  over  the  premises  of  said  plaintiff, 
in  lawful  and  due  use  of  the  said  right  of  way,  with  a  wagon  and 
team,  from  the  premises  of  the  said  ,  now  in  the  occupation 

and  use  of  said  as  lessee,  as  aforesaid,  as  he  had  a  lawful  right 

so  to  do ;  and  that  the  trespasses  alleged  in  said  petition  are  the  so 
passing  over  said  premises  of  the  plaintiff,  as  he  rightfully  might ; 
and  this  he  is  ready  to  make  appear. 

E  H,  Attorney  for  Defendant. 

This  is  the  form  in  the  case  of  Williams  v.  James,  L.  E.,  2  C.  B. 
577.  In  this  case  it  was  claimed  there  was  an  excess  of  the  right, 
by  hauling  hay  that  grew  on  another  lot,  adjoining  the  lot  of  de- 
fendant, to  which  it  was  admitted  the  right  of  way  attached.  It 
was  held  no  excess  of  user.  Vide  Howell  v.  King,  1  Mod.  190; 
Lawtoi/  v.  Ward,  1  Ld.  Eaym.  75  ;  Skull  v.  Glenister,  16  C.  B., 
N.  S.  81 ;  Cowling  v.  Higginson,  4  M.  &  W.  245 ;  Ballard  v.  Dyson, 

I  Taunt.  279;  Denning  v.  Burnett,  8  Exch.  187;  Allan  v.  Gomme, 

II  Ad.  &  El.  759;  Dand  v.  Kingscote,  6  M.  &  W.  174;  South. 
Metrop.  E.  E.  Co.  v.  Eden,  16  C.  B.  42. 

141.   PLEA   OP   ARREST   WITHOUT   WARRANT. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  said  A  B, 
plaintiff,  ought  not  to  have  and  maintain  his  aforesaid  action 
thereof  against  him;  becauso  he  saith  that  one  E  F  applied  to  this 
defendant,  who  was  then  and  there  a  constable  for  the  township 
of  ,  in  said  State  of  ,  and  represented  to  this  defendant 

that  his  dwelling-house  had  been,  in  the  night  season  of  the 
day  of  ,  a.  d.  18     ,  in  the  county  of  ,  forcibly  and  bur- 

glariously broken  into,  and  certain  goods  and  money,  of  great 
value,  then  there  being  feloniously  stolen  and  carried  away,  and 
that  one  L  M,  he  believed,  was  the  person  guilty  of  said  crime, 
because  (here  set  out  the  facts  of  suspicion  that  the  party  accused  was 
the  guilty  parly.)  and  that  this  defendant,  honestly  and  bona  fide 
believing,  and  having  such  reasonable  and  probable  cause  to  be- 
lieve, that  said  L  M  was  the  guilty  party  in  said  burglary,  did,  at 
the  time,  and  place  mentioned  in  said  petition,  gently  lay  his  hands 
on  the  said  L  M,  and  did  then  and  there,  being  such  constable,  take 

the  ^;u<|   L  M  into  his  custody,  ami  safely  keep  him  while  eoinplaint 

could  he  made  against  said  L  M,  before  some  authority  lawfully 
vested  with  the  jurisdiction  to  inquire  into  the  truth  of  said  charge 


70  4  FORMS   OP   ANSWERS. 


so  made  against  the  said  L  M,  to  be  examined  by  or  before  such  per- 
son so  lawfully  authorized  to  inquire  into  said  charge,  and  to  be 
further  dealt  with  according  to  law;  and  by  means  of  the  said  sev- 
eral premises  the  said  L  M  was  imprisoned  and  detained  for  the 
space  of  hours,  the  same  being  a  reasonable  time  for  that  pur- 
pose, and  being  lawful  and  just  for  the  cause  aforesaid;  and  this 

he  is  ready  to  make  appear. 

S  N,  Attorney  for  Defendant. 

This  form  is  made  up  from  the  plea  in  the  case  of  Wade  v.  Chaffee, 
8  E.  I.  224 ;  S.  C,  5  Am.  572.  It  was  there  held  that  a  police 
officer,  or  constable,  or  sheriff,  etc.,  was  justifiable  in  arresting  a 
party  charged  with  having  committed  a  felony,  if  he  has  probable 
cause  to  believe  the  party  guilty;  but  that  the  plea  must  set  forth 
the  grounds  of  the  suspicion,  so  that  the  court  may  judge  of  them 
and  determine  whether  they  afford  probable  cause  or  not.  And 
this  arrest  may  be  made  without  process,  even  though  there  vcuxy 
be  no  reason  to  fear  the  escape  of  such  person  in  consequence  of 
the  delay  in  procuring  the  warrant.  Davis  v.  Eussell,  5  Bing.  354 ; 
Muse  v.  Kaye,  4  Taunt.  34 ;  Boynton  v.  Tidwell,  19  Texas,  118 ; 
Samuel  v.  Payne,  1  Doug.  359  ;  Cowles  v.  Dunbar,  2  Car.  &  Payne, 
5G5.  But  the  officer  must  act  in  good  faith,  and  from  probable 
cause,  and  not  from  malice.  Beckwith  v.  Philby,  6  Barn.  &  Cress. 
635;  Burns  v.  Urben,  40  N.  Y.  4G3.  This  form  can  easily  be 
altered  to  make  it  fit  a  case  of  arrest  for  any  other  crime. 

142.    JUSTIFICATION   IN   TRESPASS   BY   A   RIGHT   OF   WAY. 

And  now  comes  the  said  C  D,  defendant,  and  says  that  said 
plaintiff  ought  not  to  have  and  maintain  his  aforesaid  action 
thereof  against  him ;  because  he,  said  defendant,  saith  that  long 
before  and  at  the  several  times  when  said  trespasses  are  averred 
to  have  been  committed  in  said  petition  mentioned,  the  said  de- 
fendant was  the  lawful  occupier  of  a  messuage  and  divers,  to  wit, 
three  closes  of  land,  with  the  appurtenances  thereunto  respectively 
belonging,  situate  at  ,  in  said  county  of  ,  and  near  to 

the  said  close  of  the  plaintiff  in  the  petition  mentioned,  in  which 
said  trespasses  are  averred  to  have  been  committed ;  and  the  de- 
fendant further  saith  that  he,  the  defendant,  and  all  the  occupiers 
for  the  time  being  of  the  said  messuage  and  closes  of  the  defend- 
ant have,  and  each  of  them  hath  been  accustomed  to  have,  use, 
and  enjoy  of  right,  for  and  during  the  full  period  of  twenty-one 
years  next  before  the  commencement  of  this  action,  a  certain  way 


TORMS    OF    ANSWERS.  705 


for  himself  and  themselves,  and  his  and  their  servants,  to  go,  pass, 
and  repass  on  foot,  and  with  horses,  cattle,  oxen,  carts,  wagons, 
and  other  carriages,  from  and  out  of  a  certain  common  highway 
in  the  county  aforesaid,  toward,  unto,  into  and  through,  over  and 
along  the  said  close  of  the  said  plaintiff  in  the  petition  mentioned, 
and  in  which  close  said  trespasses  mentioned  in  said  petition  are 
averred  to  have  been  committed,  and  from  and  out  of  the  same 
toward,  unto,  and  into  the  said  messuage  and  closes  of  said  de- 
fendant, and  so  from  thence  hack  again  toward,  into,  through, 
over,  and  along  said  close  of  said  plaintiff  in  the  petition  men- 
tioned, and  in  which  said  trespasses  in  petition  mentioned  are 
averred  to  have  been  committed,  and  from  and  out  of  the  same 
toward,  unto,  and  into  the  said  common  highway,  at  all  times  of 
the  year,  at  the  free  will  and  pleasure  of  said  defendant  and  the 
said  other  occupiers  for  the  time  being  of  the  said  messuages  and 
closes  of  said  defendant,  as  to  the  said  messuages  and  closes  of  said 
defendant  appertaining  and  belonging.  Wherefore  the  said  de- 
fendant, at  the  said  several  times  when  said  trespasses  are  averred 
to  have  been  committed,  being  the  lawful  occupier  of  his  said  mes- 
suages and  closes,  and  having  occasion  to  use  the  said  way,  went, 
passed,  and  repassed  on  foot,  and  with  horses,  oxen,  cattle,  carts, 
wagons,  and  other  carriages,  then  being  loaded  with  ,  as  in  the 

petition  mentioned,  in.  by,  through,  and  along  the  said  way,  from 
the  said  common  highway,  toward,  unto,  into,  through,  over,  and 
along  said  close  of  plaintiff  in  the  petition  mentioned,  and  in  which 
the  said  trespasses  are  averred  by  said  plaintiff  to  have  been  com- 
mitted, toward,  into,  and  unto  the  said  messuage  and  closes  of  the 
defendant,  and  so  from  thence  back  again,  in,  through,  by,  and 
along  the  said  way  unto  and  into  the  said  common  highway,  as  he 
lawfully  might  for  the  cause  aforesaid ;  and  in  so  doing,  doing  as 
little  damage  therein  to  said  plaintiff  as  on  those  occasions  he  pos- 
sibly could;  which  is  the  same  trespasses  in  the  petition  of  said 
plaintiff  mentioned  and  complained  of  against  this  defendant;  and 
this  he  is  ready  to  make  appear. 

II   B,  Attorney  for  Defendant. 

This  plea  may  be  found  in  the  report  of  the  case  of  Colchester 
,-.  Rob  rl  l  Mees.  &  Wels.  769.  To  this  plea  it  was  replied  that 
this  use  of  the  way  was  ly  license  of  the  plaintiff.  The  case  pre- 
sents a  Dice  question  between  a  use  for  one  purpose  and  a  license 
for  another.    <  !ases  cited  on  the  argument  were  :  Jackson  v.  Stacey, 

\  OL.  I  — 15 


TOG  FORMS   OF   ANSWERS. 


Holt's  N.  P.  C.  455;  S.  C,  3  Eng.  C.  L. ;  Cowling  v.  Higginson, 
4  M.  &  W.  2  15  ;  Simpson  ».  Lewthwaitc,  3B.&  Adol.  226  ;  Barnes 
v.  Hunt,  11  East,  451. 

143.    PAYMENT  PUIS   DARREIN   CONTINUANCE. 

And  now  comes  the  said  C  D,  the  defendant,  and  says  that  said 
plaintiff  ought  not  further  to  prosecute  his  said  action  thereof 
against  him  for  the  said  sum  so  demanded,  and  all  interest  and 
damages  for  the  non-payment  thereof;  because  he  saith  that  the 
goods  mentioned  in  said  petition,  and  the  price  of  which  is  sought 
to  be  recovered  in  this  action,  were  warranted  by  the  said  plaintiff 
at  the  time  of  said  sale  to  be  of  good  and  sound  quality,  and  the 
account  was  stated  in  respect  of  said  goods,  and  when  the  goods 
were  delivered  to  the  said  defendant,  he  then  discovered,  as  was 
the  fact  as  he  avers,  that  they  were  not  of  good  and  sound  quality, 
and  did  not  correspond  with  said  warranty,  and  thereupon,  and 
before  the  commencement  of  this  action,  disputes  arose  between, 
said  plaintiff  and  defendant  in  respect  to  the  alleged  breach  of 
warranty  on  the  part  of  the  plaintiff;  and  after  the  commencement 
of  this  action,  and  after  the  last  pleading  in  it,  it  was  agreed  be- 
tween said  plaintiff  and  defendant  that  this  defendant  should  pay 
to  the  said  plaintiff,  and  said  plaintiff  should  accept  and  receive 
from  the  defendant,  the  sum  of  $  ,  in  settlement  of  the  debt 
sought  to  be  recovered  by  the  plaintiff  in  this  action,  together 
with  all  interest  and  damages  for  the  detention  thereof,  and  there- 
upon the  said  defendant  paid  to  the  said  plaintiff  the  said  sum  of 
$  ,  and  said  plaintiff  received  the  same  in  satisfaction  and  dis- 
charge of  said  debt  so  demanded  in  said  petition,  and  of  all 
interest  and  damages  due  for  the  detention  thereof;  and  this  he 
is  ready  to  make  appear. 

S  N,  Attorney  for  Defendant. 

This  plea  was  held  good  in  the  case  of  Ash  v.  Pauppeville,  L.  E., 
3  Q.  B.  86.  The  plea  wras  held  bad  as  pleaded,  because  it  did  not 
aver  that  said  sum  was  in  satisfaction  of  damages,  as  well  as  of  the 
debt.  That  averment  is  inserted  here,  though,  under  our  practice, 
there  would  seem  to  be  no  need  of  it,  as,  under  our  practice,  in- 
terest is  the  only  recovery  that  can  be  had  in  addition  to  the  debt. 
There  are  no  damages  under  our  practice.  The  plea  is  that  the 
amount  sued  for  was  compromised  for  a  particular  sum ;  this,  of 
course,  included   the  whole  claim — principal  and   interest.     The 


FORMS   OF   ANSWERS.  707 


demand  for  damages  under  the  English  practice  is  merely  techni- 
cal, as  the  damages  are  only  the  interest  allowed  by  law. 

There  is,  it  will  be  seen,  a  consideration  for  this  compromise  or 
settlement,  and  that  consideration  is  the  dispute  as  to  the  warranty 
and  its  failure  in  the  character  of  the  goods.  Hence,  it  is  not  a 
case  where  a  less  sum  is  agreed  to  be  received  in  discharge  of  a 
larger  one;  though  since  the  decision  in  Harper  v.  Graham,  20 
Ohio,  105,  there  would  not  seem  to  be  much  left  of  that  rule. 

Counsel  in  this  case  of  Ash  v.  Pouppeville  say  that  no  doubt  a 
plea  of  payment  of  a  smaller  sum  in  satisfaction  of  a  larger,  with 
an  agreement  to  pay  costs,  would  be  good,  and  cite  Cooper  v.  Parker, 
15  C.  B.  822 ;  but  this  plea  is  a  plea  to  the  further  maintenance  of 
the  action,  and  alleges  the  payment  and  acceptance  of  a  smaller 
sum  in  satisfaction  of  the  debt  only;  and  it  leaves  unanswered  the 
plaintiff's  claim  for  damages  and  costs.    Lush,  J.:  "Costs  are  the 
ouly  real  part  of  damages  in  such  a  case.     Do  not  the  rules  under 
the  common  law  procedure   (1852)    enable   the   plaintiffs  to  get 
their  costs  ?  "     Counsel :  "  Possibly  that  may  be  an  answer  as  to  the 
3;  but  the  plea  leaves  the  damages  unanswered."      Lush,  J.: 
"A  plea  of  payment  of  £100,  to  the  further  maintenance  of  the 
action  as  to  the  £100,  would  be  good,  and  the  plaintiffs  can  sign 
judgment  for  nominal  damages  and  the  costs  ;  it  is  a  mere  techni- 
cal objection  as  to  the  mode  of  pleading."     Lush,  J.:  "Mr.  Cole 
has  convinced  me  that  my  first  impression,  which  certainly  was 
very  strong,  was  erroneous,  and  that  the  plea  is  defective  in  not 
saying  that  the  payment  was  made  in  satisfaction  of  the  damages 
as  well  as  of  the  debt.     It  is  a  case,  however,  for  amendment,  and 
the  defendant  may  have  leave  to  amend."     The  plea  was  amended 
-  {>>  he  what  it  is  above.     The  plea  is  a  plea  to  the  further  pros- 
ocution  of  the  action  for  the  debt,  interest,  and  damages;     and 
leave-  the  plaintiff  to  take  a  judgment  for  costs.      If  the  compro- 
mise includes  the  costs  of  the  action  in  the  sum  paid,  then  the 
answer  may  be  to  the  whole  action,  and  the  words,  "for  the  said  sum 
so  demanded  and  all  interest  ami  damages  for  the  non-payment 
thereof,"  1>«-  omitted,  because  there  can  he  in  such  a  case  no  judg- 
ment I'm-  COStS. 

This  Case  Bhows  how  a  case    is  to  he  entered  when  settled.      If 

thedefendanl  is  compelled  to  plead  the  settlemenl  puis  darrein  con- 
tinuance, judgmenl  for  costs  will  he  rendered  against  him.  This 
(.f  course  only  applies  when  the  settlement  fails  to  provide  for  the 
disposition  of  the  costs.  Ami  there  is  another  qualification  prob- 
ably to  be  made.      l\)  in  tie  settlement,  the  defendant   pays,  or  is 


708  FORMS   OP   ANSWERS. 

to  pay  plaintiff  anything,  the  plaintiff  is  entitled  to  costs,  as 
though  he  had  obtained  a  judgment  for  that  sum  on  a  verdict ; 
but  if  the  plaintiff  is  to  pay  the  defendant  any  amount,  then  the 
defendant  is  entitled  to  costs.  If,  then,  a  case  originating  in  the 
Common  Pleas  is  settled  for  a  sum  less  than  $100,  the  plaintiff 
would  npt,  in  absence  of  an  agreement,  be  entitled  to  costs.  The 
agreement  lakes  the  place  of  a  verdict  of  a  jury  as  to  the  amount 
due  plaintiff  or  defendant,  and  hence  costs  should  be  given  or  not 
given,  as  in  case  the  jury  had  found  a  verdict  for  that  amount. 
This  of  course  only  applies  where  the  agreement  of  settlement 
makes  no  provision  for  costs.  The  agreement  of  the  parties  in 
that  respect  must  prevail,  and  constitute  and  govern  the  judgment 
to  be  entered. 

As  to  costs  on  an  award,  see  Dunhill  v.  Ford,  L.  R,  3  C.  B.  36. 
In  this  case  the  action  was  referred,  costs  to  abide  the  award. 
There  were  claims  on  both  sides,  but  the  arbitrators  found  the 
largest  amount  in  favor  of  the  defendant;  held,  defendant  was  en- 
titled to  costs.      Tide  also  Boodle  v.  Davies,  3  Ad.  &  El.  200. 

144.     ANSWER    TO     BREACH    OF    PROMISE    TO    MARRY — TOO    UNWELL. 

And  now  comes  the  said  defendant,  and  says  that  said  plaintiff 
ought  not  to  have  and  maintain  her  aforesaid  action  thereof 
against  him;  because  he  saith  that  after  the  making  of  said  agree- 
ment mentioned  in  the  plaintiff's  petition,  and  before  any  breach 
thereof  had  occurred,  the  said  defendant,  without  fault  on  his  part, 
became,  was,  and  still  is  affected  with  dangerous  bodily  disease, 
which  has  occasioned  frequent  and  severe  bleeding  from  the  lungs, 
whereby  said  defendant  has  become  greatly  weakened  and  reduced 
in  rigor  and  force  of  body,  and  in  danger  of  his  life  from  .said  dis- 
ease, and  from  thenceforth  hitherto  has  been  and  still  is  incapable 
of  and  unfitted  for  marriage,  without  great  and  immediate  danger 
of  his  life;  and  said  defendant  further  avers  that,  having  ascer- 
tained his  said  condition,  he  notified  said  plaintiff  thereof  and  in- 
formed her  that  out  of  regard  to  the  continuance  of  his  life  he 
could  not  enter  into  marriage  with  her  in  his  present  condition  of 
bod}T  without  immediate  and  imminent  danger  to  his  life,  and 
hence  is  unfit  for  marriage  ;  and  this  he  is  ready  to  make  appear. 

A  B,  Attorney  for  Defendant. 

A  similar  plea  was  under  consideration  in  the  case  of  Hall  v. 
Wright,  Ellis,  Blackburn  &  Ellis,  740 ;   S.  C,  96  Eng.  C.  L.  745. 


FORMS    OF    ANSWERS.  709 


The  Court  of  Queen's  Bench  was  equally  divided  on  the  plea  as 
there  presented,  and  because  there  was  no  proof  of  notice  of  the 
fact  to  plaintiff  before  suit.  Campbell,  C.  J.,  and  Compton,  J., 
were  against  the  plea,  and  Wightman,  J.,  and  Erie,  J.,  for  it,  In 
the  Exchequer  Chamber,  Williams,  J.,  Martin,  B.,  Crowder,  J., 
and  Willis,  J.,  were  against  the  plea,  and  Pollock,  C.  B.,  Bram- 
well,  B.,  and  Watson,  B.,  in  favor  of  its  validity.  In  the  various 
opinions  the  whole  subject  is  thoroughly  discussed,  and  in  my 
opinion  the  reason  of  the  matter  is  with  those  holding  the  validity 
of  the  plea.  Suppose  a  party  under  a  promise  to  many,  and  he 
is  struck  with  paralysis,  is  it  possible  that  the  party  would  not  be 
discharged  from  his  promise?  Would  he  be  compelled  to  submit 
to  the  mockery  of  a  marriage,  or  submit  to  be  sued  in  an  action 
for  a  breach  of  promise?  This  contract  has  conditions  attached  to 
it ;  it  is  not  like  other  contracts.  There  death  does  not  vacate  the 
contract;  his  executor  or  administrator  is  bound  to  execute  it,  or 
his  estate  is  liable  for  damages.  But  it  is  a  condition  of  this  con- 
tract that  the  death  of  either  party  puts  an  end  to  it.  Can,  there- 
fore,  a  man  or  woman  be  compelled  to  marry,  when  such  mar- 
riage would  endanger  the  life  of  either  of  the  parties?  The 
French  law,  according  to  Pothier,  admitted  ill-health  to  a  certain 
degree  to  avoid  the  contract.  There  are  eases  of  bodily  disease 
and  moral  disease.  There  is  no  doubt  that  intellectual  disease 
would  also  avoid  it,  as  the  marriage  would  be  null  if  the  mind  was 
unsound.  "  The  principle,"  says  Erie,  J.,  "to  be  deduced  from  these 
case-,  seems  to  me  to  be  that  a  contract  to  many  is  assumed  in 
law  to  be  made  for  the  purpose  of  mutual  comfort,  and  is  avoided, 
if.  by  the  act  of  God  or  the  opposite  part}',  circumstances  are  so 
changed  as  to  make  intense  misery,  instead  of  mutual  comfort,  the 
probable  result  of  performing  the  contract."  This  contract  of 
marriage  is  founded  on  reasons  of  public  policy,  and  these  reasons 
declare  the  contract  at  an  end  whenever  circumstances  occur  after 
it  has  been  made,  which  render  the  party  unfit,  morally  or  bodily. 
to  enter  into  it.  The  French  law  has  reason  and  policy  in  its 
favor,  and  it  is  only  by  conforming  this  contract  to  ordinary  con- 
tracts that  such  a  decision  can  be  sustained.  It  is  admitted  that 
the  death  of  either  party,  unchastity  in  the  woman,  and  impo- 
tency,  are  reasons  for  excusing  its  execution.  Is  not  such  a  state 
of  bodily  health  as  to  endanger  life  by  entering  into  marriage  an 
equally  valid  reason?  I  think  thai  it  is.  Pollock,  C.  B.,  says:  "1 
think-  if  the  man  can  say  with  truth,  'by  the  visitation  of  Provi- 
dence I  am  not  capable  of  marriage,1  he  can  not   be  called  upon  to 


710  FORMS   OP   ANSWERS. 

many.  And  I  think  this  is  an  implied  condition  of  all  agreements 
to  marry.  I  think  that  a  view  of  the  law  which  puts  a  contract  of 
marriage  on  the  same  footing  as  a  bargain  for  a  horse,  or  a  bale 
of  goods,  is  not  in  accordance  with  the  general  feelings  of  man- 
kind, and  is  suppoi'ted  by  no  authority." 

145.  LICENSE. 
And  the  said  0  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that  he,  the  said  defendant,  at  the  time  of  committing  said  tres- 
passes, so  by  the  said  plaintiff  in  his  said  petition  complained  of, 
by  the  leave  and  license  of  the  said  plaintiff,  to  him  for  that  pui*- 
pose  first  given  and  granted,  committed  the  said  supposed  tres- 
passes in  the  said  petition  mentioned ;  and  this  he  is  ready  to  make 
appear. 

Vide  8  East,  308;  4  M.  &  S.  562;  1  B.  &  C.  634;  2  Term,  166; 
7  Taunt.  156.  A  license  is  not  assignable.  Pease  v.  Gibson,  6 
Greenl.  81 ;  Emerson  v.  Fisk,  6  lb.  200 ;  Prince  v.  Case,  10  Conn. 
375 ;  "Woodbury  v.  Parshly,  7  N.  II.  237.  A  license  to  build  a  dam 
on  one's  land,  or  an  end  of  it,  for  benefit  of  both,  is  not  revocable 
after  execution.  lb. ;  13  Vt.  150  ;  Luce  v.  Carley,  24  "Wend.  451 ; 
Gardner  v.  Eowland,  2  Iredell,  247. 

146.    RIGHT   OP    WAT. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him ;  because  he  saith 
that,  before  and  at  the  time  of  the  committing  of  the  said  trespasses 
in  the  said  petition  mentioned,  there  was,  and  of  right  ought  to  have 
been,  a  common  and  public  highway  into,  through,  and  over  the 
said  close  of  the  said  plaintiff  in  his  said  petition  described,  and 
along  which  all  citizens  and  travelers  had  a  right  to  pass,  with 
their  carriages,  teams,  and  on  foot,  at  all  times,  of  their  own  free 
will;  and  that  the  said  defendant,  with  his  said  horses,  etc.,  did 
thereupon  pass  over  and  along  said  close,  in,  by,  and  along  the 
said  highway,  using  the  same  as  he  lawfully  might,  doing  no  un- 
necessary damage  to  the  premises  and  close  of  the  said  plaintiff; 
and  because  the  said  fence,  stakes,  gates,  etc.,  had  been  Wrongfully 
erected,  and  were  standing  on  said  highway,  and  obstructing  the 
same  to  the  .great  inconvenience  and  hinderance  of  the  lawful 
travel  over  the  said  public  highway,  he,  the  said  defendant,  did 


FORMS    OF    ANSWERS.  711 


remove,  dig  up,  and  pull  down  said  obstructions,  and  carried  the 
same  to  a  small  and  convenient  distance,  and  there  left  the  same 
for  the  use  of  the  said  plaintiff,  doing  no  unnecssary  injury  thereto ; 
which  are  the  same  supposed  trespasses,  by  the  said  plaintiff,  in 
his  said  petition,  complained  of;  and  this  he  is  ready  to  make 
appear. 

147.  ROAD  FOUNDEROUS,  AND  DEFENDANT  WENT  ON  PLAINTIFF'S 

LAND. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff 
ought  not  to  have  his  said  action  against  him;  because  he  saith 
that,  before  and  at  the  time  of  committing  the  said  supposed 
trespass  by  the  said  plaintiff  in  his  said  petition  named,  there  was 
a  common  public  highway,  passing  along  and  next  adjoining  to 
the  said  close  of  the  said  plaintiff;  and  that  the  said  public  high- 
way, so  passing  next  adjoining  said  close  of  the  said  plaintiff,  was 
then  so  miry,  deep,  founderous,  and  out  of  repair,  that  it  was  im- 
possible for  the  public  to  pass  over  and  along  said  road  with  their 
carriages,  wagons,  and  carts;  and  that  the  said  defendant  having 
occasion  to  pass  along  and  over  said  road  with  his  said  wagon  and 
horses,  and  being  unable  to  do  the  same,  by  reason  of  the  said 
highway  being  so  miry  and  founderous,  did  take  down  the  fence 
of  the  close  of  the  said  plaintiff,  in  a  convenient  and  proper  place, 
and  with  his  said  horses  and  wagon,  did  pass  over  the  said  close 
of  the  said  plaintiff,  and  around  the  said  founderous  and  miry 
part  of  said  highway,  and  returned  again,  with  his  said  wagon  and 
horses,  into  said  public  highway  as  soon  as  he,  the  said  defendant, 
conveniently  could,  he,  the  said  defendant,  doing  no  unnecessary 
damage,  in  so  going  over  the  close  of  the  said  plaintiff;  which  are 
the  said  supposed  trespasses  so  complained  of  by  said  plaintiff  in 
his  said  petition ;  and  this  he  is  ready  to  make  appear. 

A  man  may  justify  going  over  adjoining  ground  of  another,  by 
reason  thai  the  common  highway  is  founderous  and  impassable. 
Fulton  v.  Monahan,  4  Ohio,  42G. 

148.    ENJOYMENT    OE    BIGHT    OE    FLOWAQE    FOR   TWENTY-ONE    YEARS. 

And  the  said  C  l>.  defendant,  now  comes,  and  for  answer  to  the 

petition  of  the  said  A   B,  plaint  ill',  saith  that  the  said  plaint  ill' ought 
nol  to  have   bis  said  action  against  him  ;   because  he  saith  that  the 


712  FORMS   OF   ANSWERS. 


said  defendant  is  possessed  of  a  certain  close,  situate  at  ,  in 

,  with  a  grist-mill  (or,  saw-mill,  or,  paper-mill,)  and  a  dam 
thereon  and  across  the  said  creek,  below  the  close  of  the  said 
plaintiff;  and  the  said  defendant  further  saith  that  he,  and  those 
under  whom  he  claims  to  hold  said  close,  mill,  and  dam,  did,  more 
than  twenty-one  years  before  the  commencement  of  this  action, 
build  the  said  dam  across  said  creek  to  the  height  of  ten  feet,  and 
have'  ever  since  and  continuously  kept  the  same  up  to  that  height, 
and  during  all  that  time  have  flowed  the  water  of  said  creek  back 
upon  the  premises  of  the  said  plaintiff,  as  the  said  plaintiff  hath  in 
his  said  petition  thereof  complained  against  this  defendant;  and 
this  he  is  ready  to  make  appear. 

Under  the  old  practice,  the  plea  in  such  a  case  must  set  forth  a 
grant  which  has  been  lost,  and  justify  under  that.  The  code,  how- 
ever, is  against  all  fictions  in  pleading.  Hence  such  a  defense 
must  be  made  in  this  form,  or  it  can  not  be  made  at  all.  It  sets 
up  the  fact  of  an  adverse  possession  for  over  twenty-one  years  ; 
this  is  in  law  a  bar  to  the  right  to  sue  ;  the  defendant  has  a  right 
to  flow  the  water,  as  he  has  done  for  twenty-one  years.  See  an 
other  form  under  the  head  of  Limitation. 

149.  ENTRY  TO  RETAKE  PROPERTY  DETAINED  BY  PLAINTIFF. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  be  permitted  further  to  prosecute  his  said  action  ;  because  he 
saith  that  the  said  defendant,  long  before  the  time  of  the  commit- 
ting of  said  supposed  trespasses,  was  possessed  of  a  gelding,  (or, 
if  mentioned  in  petition,  of  said  gelding,)  as  his  own  pixyperty,  and 
that  the  said  plaintiff  did  then  with  force  take  the  said  gelding 
from  the  possession  of  the  said  defendant,  and  put  the  same  into 
the  said  close,  and  wrongfully  detain  him  therein,  and  that  this 
defendant,  in  his  own  right,  (and  the  said  ,  if  more  than  one 

defendant,  as  his  servant,  and  by  his  command,)  broke  and  entered 
into  the  said  close  of  the  said  plaintiff,  in  order  to  retake  the  said 
gelding,  and  did  then  and  there  retake  the  said  gelding,  and  lead 
him  away  as  he  lawfully  might,  for  the  cause  aforesaid;  and  this 
he  is  ready  to  make  appear. 

As  to  right  to  enter  this  for  this  purpose,  see  3  Bla.  Com.  4 ; 
Comyn's  Dig.,  Pleader,  3  M.  39 ;  8  Term,  78. 


FORMS    OF    ANSWERS.  713 

150.    JUSTIFICATION    UNDER    LEGAL   PROCESS. 

No  forms  are  here  given,  since  they  are  seldom  needed.  They 
will  be  found  in  3  Chitty  PI.  1130,  and  the  form  given  to  justify  an 
arrest  will  serve  for  a  guide,  and  the  answer  must  in  all  cases  set 
out  the  issue  of  the  writ,  and  the  doings  of  the  officer  under  it. 
If  the  plaintiff  in  the  execution  is  sued,  he  must  set  forth  a  judg- 
ment, execution,  and  levy  under  it. 

151.    JUSTIFICATION    IN    SLANDER    FOR    LARCENY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B.  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him;  because  he  saith  that  the 
said  plaintiff,  at  ,  on  the         day  of  ,  A.  d.  IS     ,  feloni- 

ously did  steal,  take,  and  cany  away,  (here  state  the  property  stolen, 
as  in  an  indictment^  of  the  value  of  6  ,  the  property  of  the  said 
CD;  wherefore  the  said  defendant  spoke  the  words  mentioned  in 
the  said  plaintiff's  petition,  at  the  several  times  and  places  therein 
mentioned,  as  he  lawfully  might  do;  and  this  he  is  ready  to  make 
appear. 

The  decisions  show  that  the  plea  must  be  in  this  form.  3  Pr. 
400  ;  Fry  v.  Bennett,  1  Code  K  S.  255;  Anibal  v.  Hunter,  6  Pr. 
255  :  .-.  Woodin,  6  Pr.  8-1;  Porter  v.  McCreedy,  1   Code  X. 

S.  88;  Lewis  v.  Kendall,  G  Pr.  59;  Buddington  v.  Davis.  6  Pr.  401; 
7  Pr.  227:  9  lb.  282  ;  L0  Eb.  79.  The  law  of  pleading  in  slander  is 
not  altered  in  Ohio  by  the  code.  The  law  still  requires  that  a  plea 
of  justification  should  admit  the  speaking  of  the  words,  and  state 
the  facts  which  constitute  the  crime  or  charge  made. 

152.    jr.STIFICATIOX    TO    CALLING    A    WOMAN    A    WIIORE. 

And  now  comes  the  said  C  I>.  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  and  wife,  plaintiffs,  saith  thai  the  said 
plaintiffs  oughl  nol  to  have  their  said  action  against  him:  because 
h<    Baith  thai  lie-  said  E3  F  did.  on  the  da}'  of  ,  A.  n.  18     f 

while  sole  and  unmarried,  have  carnal  connection  with  one  ; 

wherefore  the  Baid  C  I>  Bpoke  the  words  in  the  said  plaintiff's  peti- 
tion mentioned,  as  he  lawfully  might  do;  and  this  he  is  ready  to 
make  appear. 

This  plea  was  held  good  in  Alcorn  v.  Hooker,  7  Blackf.  58.  A 
replication  was  interposed  in  that  case,  Betting  up  thai  thi 


14 


FORMS    OP    ANSWERS. 


tion  had  been  had  long  before,  and  with  her  present  husband ;  and 
that,  with  that  exception,  she  had  been  virtuous.  This  replication 
was  held  bad,  and  the  plea  adjudged  good.  The  court  says  that  a 
single  act  of  larceny  makes  a  thief,  and  they  can  see  no  difference 
between  the  cases  in  principle,  however,  hard  it  may  appear.  If 
there  is  an  answer,  it  is  this — that  the  word  whore  means  more  than 
a  single  act  of  incontinence ;  and  hence  that  the  averment  of  a 
single  act  does  not  meet  the  charge.  The  plea  ought  to  aver  sev- 
eral acts  with  persons  whose  names  are  given,  or  are  averred  to  be 
unknown. 

153.    A   SECOND   PLEA,    CHARGING   SEVERAL    ACTS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  her  said  action  against  him ;  because  he  saith  that  the 
said  plaintiff  did,  on  the         day  of  ,  a.  d.  18     ,  at  , 

have  carnal  connection  with  one  ,  and  also,  on  the         day  of 

,  a.  d.  18     ,  at  ',  have  carnal  connection  with  one 

,  and  also,  on  the  day  of  ,  a.  d.  18     ,  at  , 

have  carnal  connection  with  a  person  whose  name  is  to  the  said 
plaintiff  unknown ;  wherefore  the  said  C  D  spoke  the  words  men- 
tioned in  the  said  plaintiff's  petition,  as  he  lawfully  might  do ;  and 
this  he  is  ready  to  make  appear. 

"Where  the  charge  is  that  she  has  had  carnal  connection  with  a 
particular  person,  the  justification  must  meet  that  charge.  An- 
drews v.  Vanduzer,  11  Johns.  38.  So  strict  is  this  rule  that,  where 
the  charge  was  that  the  plaintiff  stole  hogs,  and  the  plea  set  up  the 
stealing  of  a  single  hog,  the  plea  was  held  bad,  as  not  being  as 
broad  as  the  charge.  Swan  v.  Eary,  3  Blackf.  298.  So  where  the 
charge  was  that  the  testimony  of  divers  witnesses  was  returned  by 
the  plaintiff,  who  were  not  sworn,  a  plea  averring  that  the  plaintiff 
returned  one  was  held  bad.  Fysh  v.  Thorowgood,  Croke  Eliz.  G23. 
It  will  not  do  to  plead  a  crime  of  a  similar  character,  although  of 
the  same,  or  even  greater  enormity  ;  the  plea  must  be  to  the  very 
charge.  Torrey  v.  Field,  10  Vt.  353.  This  renders  a  distinction  in 
the  charge  important,  Where  it  is  general,  as  that  a  woman  is  a 
whore,  or  unchaste,  or  that  one  is  a  thief,  or  a  perjured  man,  or  a 
counterfeiter,  etc. ;  in  such  cases,  any  act  of  the  kind  may  be 
pleaded  in  bar  ;  but  where  the  charge  is  specific,  as  that  he  stole 
the  horse  of  A,  or  committed  perjury  on  such  a  trial,  or  had  con- 
nection with  a  particular  individual;  in  these  cases,  the  pica  must 


FORMS    OF    ANSWERS.  715 


meet  that  charge,  and  aver  it  to  be  true.  It  matters  not  how  many 
larcenies,  or  forgeries,  or  acts  of  incontineney  the  party  may  have 
been  guilty  of,  the  defendant  can  not  justify  unless  he  can  prove 
the  very  one  he  has  charged. 

154.    JUSTIFICATION    IN    PERJURY. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  against  him ;  because  he  saith  that,  be- 
fore the  speaking  and  publishing  of  the  said  words,  of  and  con- 
cerning the  said  plaintiff,  in  the  said  petition  mentioned,  (or,  in  the 
first  count  of  the  said  petition  mentioned,)  to  wit,  on  the  day 

of  a,  d.  18     ,  at  a  Court  of  Common  Pleas,  within  and  for  the 

county  of  ,  then  begun  and  holden  at  the  court-house  in  } 

in  said  county,  a  certain  issue  before  them  joined  inaction  pending 
in  said  court,  wherein  one  was  plaintiff,  and  one  was 

defendant,  came  on  to  be  tried  in  due  form  of  law,  and  was  then 
and  there  tried  by  a  jury,  (or,  by  the  court,)  duly  elected  and 
sworn  between  the  parties ;  and  upon  such  trial  of  the  said  issue^ 
the  said  plaintiff  appeared  as  a  witness  for  and  on  behalf  of  the 
said  ,  the  plaintiff  in  said  action,  and  the  said  plaintiff  was 

then  and  there  duly  sworn  and  took  his  corporeal  oath  before  the 
said  court,  the  said  court  then  and  there  having  competent  author- 
ity to  administer  the  said  oath  to  the  said  plaintiff  in  that  behalf; 
and  upon  the  said  trial  of  the  said  issue,  it  then  and  there  became 
and  was  material  to  ascertain  the  truth  of  the  matters  hereafter 
stated  to  have  been  sworn  to  by  the  said  plaintiff;  and  the  said  de- 
fendant further  saith  that  the  said  plaintiff,  being  so  sworn  as  afore- 
said, upon  his  oath  aforesaid,  then  and  there  falsely,  wickedly, 
willfully,  maliciously,  and  corruptly,  and  by  his  own  act  and  con- 
sent, did  give  evidence,  amongst  other  things,  at  and  upon  the  said 
trial,  to  and  before  the  jurors  aforesaid,  and  to  the  court  aforesaid, 
that  {here  state  the  evidence  in  which  he  committed  perjury ;)  whereas 
in  truth  and  in  fact,  etc.,  {here  negative  the  plaintiff's  evidence,  as  in 
an  indictment  for  perjury ;)  and  the  said  plaintiff  did  thereby,  in  the 
said  court,  at  the  said  term  thereof,  so  holden  as  aforesaid, 

upon  his  said  oath.  npOD  the  said  trial  of  the  said  issue,  falsely,  wick- 
edly, willfully,  maliciously,  and  corruptly  commit  willful  and  cor- 
rupt perjury ;  wherefore  the  said  defendant,;:!  the  said  time  (or, 
several  times,  if  more  than  one  conversation  is  set  out,)  in  the  said 
petition  mentioned,  spoke  ami  published,  of  and  concerning  the 
said  plaintiff,  the  said  several  words  in  the  said  petition  (or,  the 


716  FORMS   OP    ANSWERS. 


first,  or  other  count  of  the  said  petition,)  averred,  as  he  lawfully 
might  do,  for  the  cause  aforesaid;  and  this  he  is  ready  to  make 
appear. 

A  plea  of  justification  of  perjury,  it  is  said,  must  be  proved  by 
two  witnesses,  or  what  is  equivalent.  It  requires  the  same  evidence 
as  on  the  trial  of  an  indictment  for  perjury. 

Counter-claim. 

The  form  of  a  counter-claim  is  nowhere  indicated  in  the  code, 
and  books  of  precedents  afford  us  no  aid  in  its  construction.  It 
must,  however,  state  all  the  facts  which  are  necessary  to  show  that 
the  defendant  has  such  a  claim  as  the  code  contemplates.  It  must 
show  a  claim  by  the  defendant  against  the  plaintiff;  and  a  claim  is 
the  assertion  of  a  right  of  action.  Hence  the  answer,  setting  up  a 
counter-claim,  must  state  such  facts  as  show  a  right  of  action  in  the 
defendant  against  the  plaintiff.  The  answer  must  also  show  that 
this  claim  arose  out  of  the  contract  or  transaction  set  forth  in  the 
petition,  or  is  connected  with  the  subject  of  the  action.  Where  a 
suit  is  brought  for  rent  due  for  premises,  a  trespass  to  and  destruc- 
tion of  personal  property  on  the  premises  can  not  be  set  up  byway 
of  counter-claim.  Drake  v.  Crockroft,  10  Pr.  377.  The  first  fact, 
then,  to  be  averred  is  that  the  counter-claim  is  connected  with  the 
cause  of  action  set  forth  in  the  petition;  and  secondly,  the  facts 
constituting  this  claim  or  right  of  action  ;  and  these  facts  must  be 
stated  clearly  and  fully,  so  as  to  show  a  right  of  action,  and  that 
an  issue  may  be  taken  on  them.  For  this  purpose,  the  answer  be- 
comes a  petition,  and  the  facts  must  be  stated  as  if  the  defendant 
was  a  plaintiff  in  an  action  to  recover  for  the  cause  of  action.  The 
answer,  therefore,  must  contain  substantially  what  a  petition  is 
required  to  contain,  as  to  the  facts  necessary  to  be  stated,  and  the 
manner  of  stating  them.  The  form,  therefore,  can  do  little  more 
than  indicate  the  manner  in  which  the  answer  should  be  drawn, 
leaving  the  pleader  to  refer  to  petitions  in  similar  cases  as  to  the 
statement  of  the  facts.  This  is  all  that  can  be  done  at  present, 
since  no  cases  have  been  decided,  and  no  forms  passed  upon  by 
which  one  can  be  guided  in  preparing  forms  of  this  character. 

A  counter-claim  must  admit  the  claim  of  the  plaintiff,  since  it 
sets  up  another  claim  wherewith  to  satisfy  it.  If  the  facts  are 
such  as  show  that  the  plaintiff  has  no  right  to  recover  on  the  claim 
set  forth  in  his  petition,  then  these  facts  are  new  matter  constitu- 
ting a  defense,  and  should  be  pleaded  as  such,  as  where  a  note  is 


FORMS   OP   ANSWERS.  717 


void  for  fraud  in  its  inception,  or  for  want  of  consideration,  or  a 
failure  of  consideration  ;  and  where  there  has  been  a  partial  fail- 
ure, or  want  of  consideration,  it  can  not  be  set  up  as  a  counter- 
claim, unless  the  facts  vest  in  the  defendant  a  right  of  action  for 
which  he  could  maintain  a  separate  suit.  A  partial  failure  of  con- 
sideration must  he  set  up  as  a  bar  to  such  a  part  of  the  claim,  while 
the  balance  must  be  admitted.  So  where  work  has  been  done  in 
an  unskillful  manner,  the  plaintiff  is  entitled  to  recover  only  the 
value  of  his  labor  to  the  defendant,  the  value  of  the  work  so  un- 
skillfully  done.  If,  however,  there  is  a  special  contract,  on  which 
an  action  could  be  sustained,  for  this  deficiency  in  work  and  ma- 
terial, by  the  defendant  against  the  plaintiff,  then  probably  the  in- 
jury sustained  should  be  claimed  by  way  of  counter-claim. 

155.    COUNTER-CLAIM. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  promissory 
note,  in  the  said  plaintiff's  petition  mentioned,  was  given  by  this 
defendant  to  the  said  plaintiff,  in  consideration  of  the  sale  and  de- 
livery of  a  horse  by  the  said  plaintiff  to  the  said  defendant,  on  the 
said         day  of  ,  a.  p.  18     ,  (the  date  of  the  note,)  and  for  no 

other  consideration  whatever ;  and  the  said  defendant  further  avers 
that,  in  consideration  that  he,  the  said  defendant,  would  buy  the 
said  horse  of  him,  the  said  plaintiff,  for  the  said  sum  of  $>  ,  and 
give  his  said  note  therefor,  payable  as  aforesaid,  he,  the  said 
plaintiff,  did  warrant  the  said  horse  to  be  sound,  (or,  well  broken 
to  a  carriage,  etc.,)  and  the  said  defendant  did  thereupon  buy  the 
said  horse,  and  give  his  said  promissory  note  for  the  said  sum  of 
$  .  as  set  forth  in  the  said  petition  ;  and  the  said  defendant 
avers  that  the  said  horse  was  not  sound  ;  but,  on  the  contrary,  was 
then  affected  with  a  disease,  whereof  he  afterward  died,  and  be- 
came wholly  lost  to  the  said  defendant,  to  his  damage  $  :  and 
the  said  defendant  prays  that  the  said  sum  of  ,  his  damages  so 
as  aforesaid  sustained,  may  be  adjudged  to  be  set  off  against  the 
claim  of  the  said  plaintiff,  so  as  aforesaid  described  in  the  said  pe- 
tition. 

Where  the  claim  is  founded  upon  false  representations,  made  on 
the  sale  the  answer  must,  of  course,  set  forth  the  false  representa- 
tions us  in  a  petition,  and  a  reference  to  the  petition  in  such  a  ease 
is  all  that  is  necessary. 


718  FORMS   OP   ANSWERS. 


Where  the  petition  is  for  the  value  of  work  and  materials  done 
and  found,  the  form  may  be  a  little  changed.  After  setting  forth 
the  introductory  part  of  the  answer,  it  may  proceed  as  follows  : 
That  the  work  and  materials,  mentioned  in  the  petition  of  the  said 
plaintiff,  were  done  and  provided  'by  the  said  plaintiff  for  the  said 
defendants  under  a  special  contract,  made  and  entered  into  by  and 
between  the  said  plaintiff  and  the  said  defendant,  on  the  day 
of  ,  a.  D.'  18     ,  whereby  the  said  plaintiff  agreed  with  the 

said  defendant,  (here  set  forth  the  agreement,  and  aver  wherein  the 
plaintiff  fatted  to  comply  therewith,  and  the  damages  sustained  by 
reason  thereof ,  just  as  would  be  done  in  case  an  action  icas  brought  on 
the  contract  for  a  breach  thereof,)  to  build  for  him,  the  said  defend- 
ant, and  furnish  all  materials  for  the  same,  a  brick  store-house,  on 
his  lot  numbered  one  hundred,  in  the  city  of  ,  of  the  follow- 

ing dimensions,  to  wit,  forty  feet  in  width,  one  hundred  feet  in 
depth,  and  three  stories  high,  of  the  height  of  nine  feet  each,  and 
have  the  same  comjdeted  and  ready  to  be  delivered  to  the  said  de- 
fendant on  or  before  the  1st  day  of  October  next  thereafter;  and 
the  said  defendant  avers  that  the  said  plaintiff  did  not  complete 
the  said  store  on  the  said  1st  day  of  October,  but,  on  the  contrary, 
did  not  complete  the  same  until  the  1st  day  of  January  next  there- 
after; whereby  the  said  defendant  was  compelled  to  hire  another 
store,  and  pay  therefor  the  sum  of  ,  and  was  otherwise  greatly 

damaged  in  the  premises;  to  the  damage  of  the  said  defendant,  as 
he  saith,  $  ;  and  ho  therefore  prays  that  the  said  sum  of  $        , 

his  damages  so  as  aforesaid  sustained,  may  be  applied  to  satisfy  so 
much  of  the  claim  of  the  said  plaintiff;  and  for  any  excess  over 
the  said  claim  of  said  plaintiff,  the  defendant  may  have  judgment 
therefor  against  the  said  plaintiff. 

The  special  damages  must  be  set  forth  in  the  answer,  as  in  a 
petition,  and  no  recovery  can  be  had  for  these,  unless  specially  set 
forth. 

15G.     COUNTER-CLAIM    ON    A   COVENANT    IN    A    LEASE    TO    ERECT    NEW 

FENCES. 

And  the  said  C  D,  defendant,  further  saith  that,  by  the  terms  of 
the  lease,  in  the  petition  of  the  said  plaintiff  mentioned,  the  said 
plaintiff  covenanted  to  build  all  new  fences,  if  any  such  should  be 
needed,  on  the  premises  so  leased  as  aforesaid ;  and  the  said  de- 
fendant saith  that  new  fences  were  needed  around  that  poi'tion  of 
said  premises  which  lay  below  the  road  passing  through  the  said 


FORMS   OF   ANSWERS.  719 


premises,  and  that  the  said  plaintiff  was,  by  the  said  defendant,  on 
the         day  of  ,  a.  d.  18     ,  notified  thereof  and  requested  to 

make  the  same,  as  by  his  said  lease  he  was  bound  to  do ;  j^et  the 
said  plaintiff  did  not  make  the  said  new  fenees,  or  any  part  thereof, 
but  wholly  refused  and  neglected  so  to  do;  whereby  the  said  de- 
fendant could  not  enjoy  the  advantages  he  otherwise  would  have 
derived  from  the  said  premises,  but  was  greatly  injured  in  his 
crops,  and  cultivation  thereof,  by  the  want  of  said  fences,  to  his 
damage   $  ;   wherefore   he  prays  judgment  against   the   said 

plaintiff  for  the  sum  of  8  ,  and  that  the  same  may  be  applied  to 
any  judgment  the  said  plaintiff  may  recover  against  him,  the  said 
defeudant,  on  the  cause  of  action  mentioned  in  the  said  petition. 

157.  SET-OFF. 
And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  A  B,  at  the 
commencement  of  this  action,  was,  and  still  is,  indebted  to  the  said 
defendant  in  the  sum  of  8  ,  on  the  several  causes  of  action 
hereafter  stated ;  to  wit,  in  the  sum  of  8  ,  for  the  price  and 
value  of  goods  before  that  time  sold  and  delivered  by  the  said  de- 
fendant to  the  said  plaintiff,  at  his  request,  with  interest  thereon 
from  the         day  of  ,  A.  n.   18     ;  in  the  sum  of  8         ,  for 

money  before  that  time  had  and  received  by  the  said  plaintiff  to  and 
for  the  use  of  the  said  defendant,  with  interest  thereon  from  the 
day  of  ,  a.  d.  18     ;  in  the  sum  of  $        ,  for  money  before 

that  time  paid  by  the  said  defendant,  for  the  use  of  the  said  plaint- 
iff, at  his  request,  with  interest  thereon  from  the  day  of  , 
a.  d.  18  ;  in  the  sum  of  8  ,  for  the  price  and  value  of  work  and 
labor  before  that  time  done,  and  material  therefor  provided,  by  the 
said  defendant  for  the  said  plaintiff,  at  his  request,  with  interest 
thereon  from  the  day  of  ,  A.  D.  18  ;  in  the  sum  of  8  , 
for  money  before  that  time  lent  by  the  said  defendant  to  the  said 
plaintiff,  at  his  request,  with  interest  thereon  from  the  day  of 
,  a.  D.  18  ;  in  the  sum  of  8  ,  for  money  found  to  he  due 
from  the  said  plaintiff  to  the  said  defendant,  on  an  account  before 
that  time  stated  between  the  said  parties,  with  interest  thereon 
from  tin.'  day  of  ,  a.  d.  18  ;  in  the  -sum  of  8  ,  with 
interest  thereon  from  the  day  of  ,  A.  D.  18  ;  on  a 
promissory  note,  which  the  said  plaintiff  before  that  time,  to  wit, 
on  the  day  of  ,  a.  n.  18  ,  (date  of  note,)  made  and 
delivered  to  the  said  defendant,  and  thereby  promised  to  pay  to 
the  said  defendant,  or  order,  the  said  sum  of  S         ,  on  the         day 


720 


FORMS   OP   ANSWERS. 


of  ,  a.  d.  18     ,  (or,  in         days  after  the  date  thereof,  or,  in 

one  year  after  the  date,  as  the  case  may  be;)  and  which  said  sum 
of  money  the  said  plaintiff  hath  not  paid,  or  any  part  thereof;  in 
the  sum  of  8         ,  with  interest  thereon  from  the         day  of  , 

a.  d.  18  ,  on  a  certain  bill  of  exchange,  drawn  by  one  B  F,  on  the 
said  plaintiff,  on  the         day  of  ,  a.  d.  18     ,  directing  the  said 

plaintiff  to  pay  to  the  order  of  the  said  defendant  the  sum  of  $  , 
in  days  after  the  date  thereof,  and  that  the  said  plaintiff  then 
accepted  the  same  on  presentation,  which  period  has  now  elapsed, 
yet  the  said  defendant  has  not  paid  said  sum  of  money,  or  any 
part  thereof;  and  the  said  defendant  prays  that  so  much  of  the 
said  sum  of  $  may  be  set  off  against  any  claim  which  the  said 
plaintiff  may  have  against  this  defendant,  as  equals  the  same,  and 
that  the  said  defendant  may  have  judgment  against  the  said  plaint- 
iff for  the  balance. 


Where  the  set-off  goes  only  to  a  part  of  the  claim  of  the  plaintiff, 
the  answer  must  admit  the  balance,  or  meet  it  with  some  other 
defense.  The  answer  may  be  that,  as  to  the  sura  of  S  ,  parcel 
of  the  said  sum  of  S.  ,  demanded  in  the  petition  of  the  said 

plaintiff,  the  defendant  saith  that  the  said  plaintiff  was,  and  still  is, 
indebted  to  the  said  defendant  in  the  said  sum  of  $  ;  and  then 
proceed  to  state  the  grounds  of  indebtedness,  as  in  the  above 
form;  and  after  that  the  answer  may  deny  that  the  defendant  owes 
the  balance,  or  aver  its  payment,  etc. 

The  set-off  is  a  single  matter,  though  composed  of  several  items; 
and  several  distinct  matters  of  set-off  may  be  combined  in  a  single 
statement ;  so  held  in  New  York,  6  Pr.  420.  But  each  item  must 
be  stated  separately,  as  in  the  above  form.  The  set-off  must  be 
treated  as  a  petition,  and  the  matters  of  set-off  be  stated  in  a  peti- 
tion, though  they  need  not  be  numbered  under  the  code,  since  the 
whole  set-off  is  but  one  statement,  and  that  alone  must  be  num- 
bered as  one  separate  matter  in  the  answer. 

A  set-off  can  be  pleaded  only  in  an  action  founded  on  a  con- 
tract; and  the  set-off  itself  must.be  a  cause  of  action  arising  on 
contract,  or  ascertained  by  the  decision  of  a  court;  hence  a  judg- 
ment may  be  the  subject  of  a  set-off.  It  would  seem  that  any 
cause  of  action  founded  upon  a  contract  may  become  the  subject  of 
set-off,  even  though  the  sum  due  sounds  in  damages,  and  the 
amount  thereof  has  to  be  ascertained  by  the  verdict  of  a  jury,  or 
of  the  court. 

The  former  statute  speaks  of  liquidated  demands,  as  being  the 


FORMS    OF    ANSWERS.  721 


subject  of  set-off;  but  the  present  statute  is  manifestly  broader, 
and  allows  unliquidated  demands  to  be  made  the  subject  of  set-off, 
so  they  arise  out  of,  or  are  founded  upon  contract.  The  cause  of 
action  to  be  set  off  must  arise  upon  contract ;  this  is  the  simple 
condition.  Hence  any  cause  of  action  founded  on  contract  maybe 
set  up  as  a  set-off  to  another  cause  of  action  arising  on  contract ; 
it  is  damages  against  damages.  The  jury,  therefore,  may  be  com- 
pelled to  try,  in  a  single  action,  two  distinct  causes  of  action,  and 
both  sounding  in  damages.  Whether  such  a  practice  will  tend  to 
certainty  in  the  administration  of  the  law  may  well  be  doubted. 

Where  the  set-off  is  a  cause  of  action  sounding  in  damages,  the 
answer  must  be  like  a  petition,  and  set  forth  the  facts  as  in  a  peti- 
tion, and  conclude  by  an  averment  of  damages,  as  in  a  petition ; 
and  then  pray  that  the  said  damages  so  sustained,  or  so  much 
thereof  as  is  necessaiy.  may  be  applied  to  satisfy  any  amount 
which  the  plaintiff  may  recover  on  account  of  the  chose  of  action 
set  forth  in  the  petition. 

It  may  be  doubtful  whether  a  set-off  must  not  be  still  for  a  sum 
certain  ;  that  may  be  called  a  liquidated  sum.  A  set-off  is  a  well- 
defined  term,  allowable  on  contracts  for  a  sum  certain ;  and  if  it 
can  be  extended  further,  then  it  will  be  broader  than  counter- 
claim, which  is  limited  to  matter  gi-owing  out  of  same  transaction ; 
while  under  head  of  set-off,  all  causes  of  action  founded  on  con- 
tract may  be  set  up.  On  consideration,  since  the  first  edition  was 
published,  our  previous  opinion  is  shaken,  if  not  entirely  changed. 
It  is  now  believed  that  set-off  must  be  limited  as  heretofore,  where 
the  sum  claimed  constitutes  a  liquidated  demand. 

In  the  case  of  Arnold  v.  Bainbridge,  21  Eng.  L.  &  Eq.  454,  the 
court  held  that  where  to  a  plea  of  set-off  the  plaintiff  replies  that 
he  is  not  indebted  as  in  the  plea  alleged,  the  plaintiff  may  show 
that  the  claim  set  off  is  one  due  from  himself  and  another,  and  not 
from  himself  alone.  Debts  can  not  be  made  the  subject  of  set-off 
unless  they  be  mutual  and  due  in  the  same  right.  The  replication 
alleges  that  the  plaintiff  is  not  so  indebted.  And  the  replication 
must  have  the  meaning  that  will  make  the  plea  good,  and  the  plea 
is  not  good  unless  the  set-off  is  a  debt  due  from  the  plaintiff  to  the 
defendant. 

vol.  i — 46 


722  EQUITY    FORMS. 


158.      SET-OFF     BY     ONE     DEFENDANT    WHO     IS     PRINCIPAL,    AND    THE 
OTHERS    SURETIES. 

And  now  comes  the  said  C  D,  and  for  answer  to  said  petition 
saitb  that  he,  the  said  C  D,  is  the  principal  debtor  in  the  said  claim 
set  up  by  said  plaintiff  in  his  said  petition,  and  that  the  other  de- 
fendants are  his  sureties  thereon,  and  have  no  other  interest 
therein  than  as  such  sureties,  of  all  "which  the  said  plaintiff  had 
notice  ;  and  the  said  C  D  saith  that  said  A  B  plaintiff  is  individu- 
ally indebted  to  this  defendant  in  the  sum  of  $  ,  (and  proceed 
as  in  prior  form,  Ko.  141  ) 

Such  a  set-off  has  been  sustained  by  our  Supreme  Court  (in  a 
case  decided  in  December,  a.  d.  1872,  and  not  yet  reported.  It 
will  appear,  I  presume,  in  22  Ohio  St.)  "Wagner  v.  Stocking,  22 
Ohio  St.  297. 


CHAPTER  XXI. 


EQUITY  POEMS. 

PETITIONS. 
1.   PETITION   ON   NOTE  AND   MORTGAGE,  FOR   PERSONAL  JUDGMENT. 

The  State  of  Ohio,  County,  ss.,  Court  of  Common  Pleas. 

A  B,  plaintiff,   \ 

vs.  v  Petition. 

C  D,  defendant.  ) 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  C  D  did,  on  the         day  of  ,  a.  d.  18     ,  make 

his  certain  promissory  note,  in  writing,  of  that  date,  and  did  then 
deliver  the  same  to  the  said  plaintiff,  anil  thereby  promise  to  pay 
to  the  order  of  the  said  plaintiff  the  sum  of  dollars  and 
cents,  in  days  after  the  date  thereof,  (or,  months  or  years 
after  the  date  thereof;)  and  the  said  plaintiff  further  saith  that,  to 
secure  the  payment  of  the  said  promissory  note  and  the  money 
stated  therein,  the  said  C  D  did,  at  the  time  of  making  said 


EQUITY   FORMS.  '  723 


promissory  note,  by  his  deed,  duly  executed  and  delivered  to  the 
said  plaintiff,  convey  to  the  said  A  B,  plaintiff,  his  heirs  and  as- 
signs, forever,  the  following  real  estate,  situate  in  the  said  county 
of  ,  and  described  as  follows,  to  wit,  (here  set  forth  a  descrip- 

tion of  the  land  included  in  the  deed,)  to  have  and  to  hold  the  same 
to  the  said  A  B,  his  heirs  and  assigns,  and  to  his  and  their  own  use 
and  behoof,  forever  ;  which  said  deed  of  conveyance  had  a  condi- 
tion thereunder  written,  whereby  it  was  provided  that,  whereas  the 
said  G  D  had  this  day  executed  and  delivered  to  the  said  A  B  his 
promissory  note  for  the  sum  of  8  ,  payable  to  the  order  of  said 
A  B,  in  days  (or,  months,  or,  years)  from  date.  Now,  if  the  said 
C  1)  shall  truly  pay,  or  cause  to  be  paid,  the  said  sum  of  8  , 
named  in  said  note,  according  to  the  tenor  and  effect  thereof,  then 
this  deed  is  to  be  null  and  void,  otherwise  to  remain  in  full  force 
and  effect  in  law.  And  the  said  plaintiff  further  saith  that  he 
caused  said  mortgage  to  be  deposited  with  the  recorder  of  said 
county  of  ,  at  his  office,  on  the        day  of  ,  a.  d.  18     , 

at  o'clock  (p.  m.  or  a.  m.,  as  case  may  be,)  for  record,  and  the 
same  was  thereupon  duly  recorded  in  the  records  of  mortgages  in 
said  county,  and  that  when  said  promissory  note  became  due  and 
payable  according  to  the  terms  thereof,  the  said  C  D  did  not  pay 
said  promissory  note,  or  the  money  named  therein,  to  the  said 
plaintiff,  nor  any  part  thereof,  nor  hath  he,  said  defendant,  yet 
paid  the  same,  nor  any  part  thereof,  but  that  the  said  sum  of  money 
still  remains  and  is  due  and  unpaid,  whereby  the  condition  of  said 
mortgage  deed  has  become  broken,  and  said  mortgage  deed  has 
become  absolute. 

Wherefore  the  plaintiff  prays  judgment  against  said  defendant 
for  said  sum  of  8  ,  with  interest  thereon  from  the  day  of 
,  A.  D.  18  ;  and  also  on  a  failure  to  pay  said  judgment  by 
a  day  to  be  named,  said  premises  may  be  ordered  to  be  appraised. 
advertised,  and  sold  as  upon  execution,  and  the  proceeds  of  said 
sale  be  applied  to  pay  and  satisfy  the  judgment  so  to  be  rendered, 
or  so  far  as  said  proceeds  shall  go  in  paying  the  same. 

II  A  T,  Attorney  for  Plaintiff. 

Since  the  last  edition  of  this  work,  the  legislature  has  interfered 
in  this  matter,  and  by  the  act  of  February  19,  1864,  has  provided 
that  iii  all  actions  lor  tic  foreclosure  of  mortgages  given  to  secure 

the  payment  Of  money,  or  in  which  a  specific  lien  for  money  claimed 

to  be  due.  is  soughl  to  he  enforced,  the.  plaintiff  may  also  ask  in 
his  petition   a  judgment  for  the  money  claimed   to  he  due;  and 


'24  EQUITY   FORMS. 


Buch  proceedings  shall  be  had  and  judgment  rendered  thereon,  as 
in  other  civil  actions  for  the  recovery  of  money  only. 

It  will  be  seen  that  the  petition  on  a  mortgage  is  converted  into 
an  action  at  law,  and  all  disputes  and  issues  arising  in  the  case  arc 
to  be  disposed  of  as  in  an  action  at  law;  hence  all  issues  must  be 
tried  by  a  jury,  unless  a  jury  is  waived  by  the  parties.  A  part 
can  not  be  tried  by  a  jury  and  a  part  by  the  court ;  the  proceedings 
and  judgment  rendered  thereon  shall  be  had  as  in  other  civil  actions 
for  the  recovery  of  money  only.  Hence  in  these  cases,  there  can  be 
no  appeal ;  there  must  be  a  second  trial  in  the  Court  of  Common 
Pleas.  This  provision  is  inserted  to  avoid  the  constitutional  ob- 
jection that  on  the  note  the  party  is  entitled  to  a  trial  by  jury. 

In  framing  a  petition  under  this  act,  the  pleader  must  be  pre- 
pared to  decide  if  there  is  any  defendant  against  whom  he  is  en- 
titled to  a  personal  judgment,  and  which  one  that  is.  The  as- 
signee or  grantee  of  the  mortgagor  is  not  liable  to  a  personal 
judgment ;  no  one  but  the  person  against  whom  an  action  at  law 
could  be  maintained  to  recover  the  money  secured  by  the  mort- 
gage. Where  the  mortgagor  has  conveyed  by  deed  his  equity  of 
redemption,  he  has  no  further  interest  in  the  land,  and  hence  is 
not  a  necessary  or  proper  person  to  be  made  a  party  to  the  action 
to  enforce  the  mortgage  against  his  grantee.  He  is  liable  on  his 
note,  or  covenant  to  pay  the  money,  which  is  secured  by  the  mort- 
gage ;  but  that  is  a  liability,  with  which  legally  the  land  mort- 
gaged has  nothing  to  do.  If  the  mortgagor  still  retains  the  legal 
title,  though  he  may  have  contracted  to  sell  the  mortgaged  prem- 
ises and  put  the  vendee  in  possession,  he  has  a  legal  interest  in 
the  premises  and  is  a  necessary  party.  The  court  has  decided 
that  the  note  and  mortgage  are  separate  securities  for  the  same 
debt ;  the  one  legal,  and  the  other  equitable  ;  the  one  to  be  en- 
forced by  an  action  at  law,  the  other  by  a  suit  in  equity.  Fisher 
v.  Mosman,  11  Ohio  St.  42.  And  hence  that  the  note  may  be 
barred  by  the  statute  of  limitations,  while  the  remedy  in  equity 
under  the  old  statute  would  run  for  twenty-one  years.  The  pres- 
ent statute  bars  an  action  on  both  note  and  mortgage  in  fifteen 
years.  Such  being  the  law,  the  plaintiff  must  own  the  note  secured 
by  the  mortgage,  and  the  maker  of  the  note  must  be  a  necessary 
party  to  the  action  on  the  mortgage;  hence  if  he  is  not  a  party, 
no  personal  judgment  can  be  had  against  any  one  ;  and  he  can 
not  be  made  a  party  for  the  mere  purpose  of  taking  a  personal 
judgment  against  him.  AYhether  he  is  a  necessary  party,  must 
be  settled  by  inquiring  whether  he  has  any  interest  in  the  land; 


EQUITY    FORMS.  725 


and  he  has  none,  if,  by  deed,  he  has  conveyed  away  all  his  right, 
title,  and  interest  in  the  same.  Under  the  old  practice,  he  was  no 
necessary  party,  and  no  more  can  he  be  under  the  present  statute. 
The  practice  in  Kansas  may  be  seen  explained  in  the  cases  of 
Young  v.  Thompson,  2  Kan.  83,  and  the  case  of  Kimball  v.  Con- 
nor, 3  Kan.  414. 

2.     PETITION    ON    NOTE    OR    NOTES   AND    MORTGAGE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  on  the         day  of  ,  A.  D.  18     ,  the  said  C  D  did,  by 

his  deed  duly  executed  and  delivered,  convey  to  the  said  A  B, 
his  heirs  and  assigns  forever,  the  following  lands  and  tenements  situ- 
ate in  said  county  of  ,  to  wit :  (here  describe  the  lands  as  they 
are  described  in  the  deed.)  together  with  the  privileges  and  appur- 
tenances thereunto  belonging ;  and  which  deed  had  a  condition 
thereunder  written,  by  which  it  was  provided  that  in  case  the  said 
C  D,  his  heirs,  executors,  administrators  or  assigns,  should  pay  to 
the  said  A  B,  his  executors  or  administrators,  the  sum  of  dol- 
lars and  cents,  with  interest,  on  or  before  the  day  , 
A.  D.  18  ,  (or,  certain  promissory  notes  therein  described.)  to  wit: 
(here  describe  the  notes  as  in  the  deed;)  then  said  deed  should  be 
void,  otherwise  it  was  to  be  and  remain  in  full  force  and  effect  in 
law;  and  the  said  plaintiff  further  saith  that  said  deed  was  on  the 
same  day,  at  the  hour  of  ,  duly  left  with  the  recorder  of  said 
county  of  for  record  and  duly  recorded,  (or,  that  said  deed 
was  on  the  day  of  ,  A.  D.  18  ,  at  o'clock  a.  m.  (or, 
P.  M.)  of  said  day  left  with  the  recorder  of  said  county  of  for 
record  and  duly  recorded ;  and  the  said  AB  avers  that  the  said 
C  D  did  not  pay  said  sum  (or,  several  sums)  of  money  when  the 
same  became  due  as  is  provided  in  the  condition  of  said  deed,  nor 
has  the  said  C  B  yet  paid  the  same  to  the  said  A  B,  whereby  said 
deed  has  become  absolute;  and  the  said  A  B  says  that  there  is  now 
due  on  said  nolo  and  mortgage  the  sum  of  dollars  and 
cents,  with  interest  from  the        day  of            ,  a.  d.  18     . 

The  .-.-iid  A  IS.  therefore,  prays  that  an  account  may  ho  taken  of 
the  amount  due  thereon,  and  that  said  lands  may  he  sold  to  salisiy 
ime,  unless  C  D  pay  said  sum,  interest  and  eosts  by  a  day  to 
be  mimed  by  the  court. 

In  the  first  edition  of  this  work,  the  form  on  a  note  ami  mort- 
gage followed  the  apparent  language  of  the  code,  and  provided  for 

a   personal  judgment    lor  lie-   money  due.      Jt  was  suggested,  how- 


f26  EQUITY   FORMS. 


over,  thai  there  was  grave  doubt,  whether  this  could  be  done  for 
reasons  there  stated.  The  Supreme  Court,  in  Ladd  v.  James,  10 
Ohio  St.  437,  lias  settled  this  question,  holding  that  a  count  on  the 
note  for  a  personal  judgment  could  not  be  joined  with  a  count  on 
the  mortgage  for  a  sale  of  the  land.  Hence  the  form  for  petition 
on  a  mortgage  is  so  changed  as  to  make  it  conform  to  the  decision. 
I  know  there  are  judges  and  lawyers  who  dispute  as  to  the  effect 
of  this  decision,  and  it  is  no  credit  to  the  court  that  it  has  so 
slurred  over  the  report  of  its  decision  as  to  give  room  for  such  dis- 
pute. Still  the  decision  means  this,  or  it  means  nothing.  In  Han- 
mond  v.  Deaver,  2  W.  Law  Month.  591,  the  same  question  came 
under  consideration,  and  was  decided  on  this  view  of  the  ease  of 
Ladd  v.  James.  Peck,  S.  J.,  was  present,  and  coincided  in 
that  opinion.  I  have  also  the  admission  of  another  of  the  judges 
of  the  Supreme  Court  that  the  case  of  Hanmond  v.  Deaver  is  a 
logical  deduction  from  Ladd  v.  James,  and  hence  was  correctly  de- 
cided.    The  practice,  too,  has  conformed  to  this  view  of  the  law. 

The  decree  will  find  the  amount  due  as  in  the  old  form  in  chan- 
cery, and  order  a  sale,  if  that  sum  and  costs  are  not  paid  by  a  day 
to  be  named. 

The  party  on  a  bill  to  foreclose  a  mortgage  is  confined,  in  his 
remedy,  to  the  pledge.  Such  a  suit  is  not  intended  to  act  in  per- 
sonam ;  it  seems  to  be  generally  admitted  in  the  books,  that  the 
mortgagee  may  proceed  at  law  on  his  bond,  or  covenant,  at  the 
same  time  that  he  is  prosecuting  his  mortgage  in  chancery  ;  and 
that  after  foreclosure  here,  he  may  sue  at  law  on  his  bond  for  the 
deficiency.  Lord  Bedesdale,  1  Sch.  &  Lef.  170,  and  13  Ves.  Jr. 
205 ;  Aylet  v.  Hill,  Dickens,  551 ;  Took's  case,  lb.  785  ;  2  Bro. 
125  ;  Perry  v.  Barker,  13  Ves.  Jr.  198;  Dashwood  v.  Blythway,  1 
Eq.  Cas.  Abr.  317.  It  is  supposed,  in  some  of  the  cases,  that  the 
subsequent  suit  at  law  for  the  remainder  of  the  debt  opens  the 
foreclosure,  and  revives  the  equity  of  redemption.  Whether  that 
be  so  is  not  now  to  be  discussed  ;  though  if  the  point  was  before 
me,  I  should  be  much  inclined  to  agree  in  opinion  with  Judge 
Story,  in  Hatch  v.  White,  2  Gall.  152,  that  there  is  no  just  founda- 
tion for  the  doctrine  ;  and  I  should  especially  doubt  of  its  applica- 
tion in  the  case  of  a  judicial  sale  under  a  decree.  Per  Kent,  Chan., 
Dunkley  v.  Van  Buren  et  ah,  3  Johns.  Ch.  330;  Beedy  v.  Burget, 
1  Ohio,  157  ;  Sydam  v.  Bartle,  9  Paige,  294 ;  Vanderkemp  v.  Shel- 
ton,  1  Clark  Ch.  321  ;  Lansing  v.  Coelat,  9  Cow.  340.  This  last 
case  decides  that  a  suit  on  the  note  at  law,  to  recover  a  deficiency, 
does  not  open  the  right  to  redeem  the  mortgage  premises  already 


EQUITY    FORMS.  727 


sold  on  a  decree.  Worthington  v.  Lee,  2  Bland.  G78.  maintains  the 
same  doctrine  as  Dunkley  v.  Van  Buren  et  al.,  siqnri ;  Fleming  v. 
Sitton,  1  Dev.  &  Bat.  Ch.  G21.  A  personal  decree  against  the  mort- 
gagor, for  a  balance  remaining  due,  will  not  be  made,  except  under 
special  circumstances,  such  as  a  loss  of  the  bond,  etc.  Fleming  v. 
Sitton,  supra.  The  loss  of  the  note  gives  a  court  of  equity  juris- 
diction to  enforce  the  collection  of  the  debt.  S.  P.,  Hunt  v.  Lewin, 
4  Stew.  &  Port.  138.  A  decree  that  the  plaintiff  have  execution 
for  any  balance  unsatisfied  by  the  sale,  is  error.  The  remedy  for 
such  balance  is  at  law.  Stark  v.  Mercer,  3  How.  (Miss.)  377  ;  S.  P., 
Crutchfield  v.  Coke,  6  J.  J.  Marsh.  89. 

All  persons  interested  in  the  mortgage  premises  should  be  made 
parties,  otherwise  they  wi41  be  entitled  to  redeem,  even  though  the 
sale  was  made  on  the  oldest  lien.  Hughes  v.  Edwards,  9  Wheat. 
489;  Madeiras  v.  Cattell,  7  Mon.  475  ;  Potter  v.  Crandall,  1  Clark 
Ch.  119 j  Renwiek  r.  Macomb,  Hopk.  277;  Eeed  v.  Marble,  10 
Paige,  409  ;  Haines  v.  Beach,  3  Johns.  Ch.  459.  Where  mortgagee 
has  assigned  the  debt,  the  assignee  is  entitled  to  foreclose;  but  the 
mortgagee  is  still  a  necessary  party,  as  he  holds  the  legal  title. 
If,  however,  he  has  assigned  or  indorsed  the  note,  and,  by  deed 
duly  executed,  conveyed  his  legal  title  to  the  land  to  the  assignee, 
he  is  no  longer  a  necessary  party.  Newman  v.  Chapman,  2  Ran- 
dolph, 92.  McGuffey  v.  Finley  et  al.,  20  Ohio,  474,  holds  that  the 
mortgagee  is  not  a  necessary  party,  even  if  he  has  only  transferred 
the  debt.  Still  he  has  the  legal  title,  and  to  enable  the  court  to 
divest  him  of  this,  he  must  be  a  party.  Where  the  mortgagor  has 
by  deed  conveyed  his  equity  to  another,  he  need  not  be  a  party  to 
an  action  to  foreclose.  Bigelow  v.  Bush,  G  Paige  Ch.  343.  A  per- 
son claiming  adversely  to  the  mortgagor  can  not  be  made  a  party. 
It  is  only  such  as  have  an  interest  in  and  under  the  mortgagor 
that  are  necessary  parties.  The  suit  is  to  extinguish  his  title. 
Eagle  Fire  Co.  v.  Lent,  G  Paige  Ch.  <;:;:>;  8  lb.  33. 

Where  a  mortgage  is  given  to  secure  installments  falling  due. 
lie-  court  can  order  a  sale,  on  failure  to  pay  the  first  installment, 
part,  and  even  of  all  the  premises,  if  they  are  not  susceptible 
of  division,  and  apply  the  proceeds  to  cancel  the  entire  debt.  This 
lias  been  the  constant  practice  in  Ohio.  All  sums  may  he  included 
in  the  decree,  which  are  due  at  the  time  of  its  being  entered. 
King  and  wife  v.  Longworth,  7  Ohio  (pt.  2),  231  ;  Lansing  v.  Ca- 
pron,  1  Johns.  Ch.  617 ;  Lyman  y.  Sale,  2  lb.  187.  If  the  tract  can 
i mi  be  divided,  the  court  may  order  the  whole  to  be  sold,  and  per- 
mit the  money,  on  motion,  to  1m;  applied  firsl  to  the  installments 


728  EQUITY   FORMS. 


due,  and  then  to  those  not  duo,  on  principles  of  equity.     King  v. 
Longworth,  supra. 

The  code  docs  not  seem  to  alter  the  law  of  equity  in  regard  to 
mortgages.  It  simply  requires  that  land  shall  he  sold  (sec.  374)  ; 
and  hence  there  can  he  no  technical  decree  of  foreclosure.  And 
such  was  the  old  rule  of  the  Supreme  Court;  a  sale  was  always 
ordered. 

The  rules  of  equity  still  heing  in  full  force,  it  would  seem  that 
no  judgment  for  the  money  ought  to  be  entered,  unless  the  party 
can  have  a  trial  by  jury.  And  where  there  are  numerous  parties 
in  interest,  the  petition  must  set  forth  all  these  interests  truly,  if 
known,  and  if  not  known,  then  call  on  the  parties  to  set  them 
forth.  Hence  the  petition  must  be  a  veritable  bill  in  chancery, 
and  can  be  nothing  else.  Nor  can  the  code  have  changed  the  rule, 
that  the  mortgagor  is  not  a  necessary  party,  when  he  has  parted 
with  all  his  legal  and  equitable  rights  in  the  property.  If  the 
maker  of  the  note  is  a  necessary  party,  in  order  that  a  judgment 
for  the  money  may  he  rendered  against  him,  it  will  change  very 
much  the  practice  on  this  subject,  and  in  equity  require  an  execu- 
tion first  to  be  issued  against  him,  where  he  has  covenanted  with 
his  assignee  to  pay  the  debt.  In  that  case,  he  is  in  equity  the 
principal  debtor,  and  the  land  in  the  hands  of  the  assignee  is  a 
mere  security. 

Where  there  is  no  personal  obligation  to  pay  the  money  named 
in  the  condition  of  a  mortgage,  the  mortgagee  is  restricted  to  his 
remedy  on  the  mortgage.  The  usual  condition  in  a  mortgage  con- 
tains no  personal  obligation  to  pay  the  money;  the  contract  is 
simply  that  the  mortgagor  may  pay  the  sum  named,  which  will  re- 
vest the  title  in  him;  or  if  he  fail  to  do  it,  then  the  deed  becomes 
absolute  at  law,  though  in  equity  he  still  has  a  right  to  redeem, 
which  right  to  redeem  may  be  cut  off  by  a  foreclosure  in  equity. 
In  such  cases  the  mortgagee  is  limited  to  the  land  for  payment, 
and  if  that  is  not  sufficient,  he  has  no  further  security.  Drum- 
mond  v.  Eichards,  2  Munf.  337  ;  4  Kent  Com.  13G,  145  ;  2  West. 
Law  Journal,  216,  222.  Hence  the  petition  on  such  a  mortgage 
must  truly  state»the  case,  and  will  omit,  of  course,  all  mention  of 
any  note  or  personal  liability.  The  substance  of  such  a  petition 
may  be  after  the  following  form  : 

3.   PETITION   ON   MORTGAGE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  C  D,  defendant,  did,  on  the        day  of  ,  a.  d. 


EQUITY   FORMS.  729 


18  ,  by  his  deed  of  that  date  duly  executed  and  delivered,  convey 
in  fee  simple,  to  the  said  plaintiff,  his  heirs  and  assigns,  the  follow- 
ing lands  and  tenements  situate  in  the  said  county  of  ,  to 
wit,  (here  describe  the  lands  mortgaged,)  which  said  deed  of  mort- 
gage was  on  the  day  of  ,  a.  d.  18  ,  duly  recorded  in  the 
records  of  mortgages  for  the  said  county  of  ;  and  the  said 
plaintiff  further  saith  that  the  said  deed  had  a  condition  thereunder 
written,  providing  that,  if  the  said  defendant  should,  on  the 
day  of  ,  a.  D.  18  ,  pay  to  the  said  plaintiff  the  sum  of  8  , 
with  interest  thereon,  then  that  the  said  deed  of  conveyance  should 
he  void  and  of  no  effect;  but  otherwise  it  was  to  he  and  continue 
in  full  force  and  virtue  in  law;  and  the  said  plaintiff  further  saith 
that  the  said  defendant  did  not,  nor  would  pay  the  said  sum  of 
,  with  interest  thereon,  on  the  said  day  of  ,  A.  d. 
18  ;  nor  hath  the  said  defendant  since  paid  said  sum,  as  aforesaid, 
or  any  part  thereof,  to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  prays  that  the  said  defendant  may 
be  decreed  and  adjudged  to  pay  the  said  sum  of  8  .  with  inter- 
est thereon  from  tho  day  of  ,  a.  d.  18  ,  within  a  short 
time  to  he  named;  or  that,  in  default  of  such  payment,  the  said 
lands  and  tenements  may  he  adjudged  to  be  appraised,  advertised, 
and  sold,  and  the  money  arising  therefrom  to  be  applied  in  pay- 
ment of  the  said  sum  of  8  ,  with  interest  thereon,  as  afore- 
said. 

The  judgment  or  decree  in  this  case  will  be  like  the  old  decree 
in  chancery.  It  will  find  the  amount  due  on  the  mortgage  ;  decree 
the  defendant  to  pay  the  same,  with  costs,  within  a  named  period; 
and  in  default  of  such  payment,  adjudge  the  land  to  he  sold,  and 
the  proceeds  to  he  brought  into  court,  to  he  applied,  on  confirma- 
tion of  the  sale,  to  (he  payment  of  the  amount  thus  found  due  on 
um  named  in  the  condition  of  the  deed.  When  this  is  done, 
tin-  mortgagee  has  exhausted  his  remedy  in  equity,  and  he  has  no 
remedy  al  law,  seeing  he  has  neither  a  note  or  personal  covenant 
for  the  payment  of  the  money.  The  code  has  not  changed  the  law  ; 
i:  has  ict  enlarged  the  rights  of  the  mortgagee,  and  they  are  lim- 
ited to  his  mortgage;  and  by  that,  his  legal  right  is  to  have  the 
land  absolutely  ;  his  equitable  right,  to  have  the  land  sold,  and  tho 
money  arising  from  such  sale  applied  to  the  payment  of  the  sum 
named    in   the  condition    of  bis   mortgage.      1  West,   haw  Journal, 

216,  111,   1  Kenl  Com.  136,  1  15;   Drummond  v.  Richards,  2  Munf. 


730  EQUITY    FORMS. 


If  the  mortgage  lias  been  assigned,  the  petition  must  set  forth 
the  fact,  and  make  the  assignee  a  party  ;  so,  too,  if  the  equity  of 
redemption  has  been  conveyed,  both  the  mortgagor  and  his  grantee 
must  be  made  parties;  the  mortgagor  as  being  interested  in  taking 
on  account  of  what  is  due,  and  the  grantee  as  holding  the  equity 
of  redemption.  The  following  form  will  serve  to  show  how  the 
petition  should  be  framed  in  such  a  case: 

4.    ON    MORTGAGE    OF    PERSONAL   PROPERTY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
(and  any  others  who  have  subsequent  mortgages  or  levies  on  same  prop- 
erty,) for  that,  heretofore,  to  wit,  on  the  day  of  ,  A.  d. 
18  ,  the  said  C  D,  being  indebted  to  the  said  plaintiff  in  the  sum 
of  $  ,  and  in  order  to  secure  the  payment  thereof  as  herein- 
after stated,  did,  by  his  bill  of  sale,  sell  and  convey  to  the  said 
A  B,  his  executors,  administrators,  and  assigns,  the  following  goods 
and  chattels,  to  wit,  (here  describe  the  articles  named  in  the  bill  of 
sale,)  to  have  and  to  hold  the  same  to  the  said  A  B,  his  executors, 
administrators,  and  assigns  forever;  which  bill  of  sale  had  a  con- 
dition thereunder  written,  whereby  it  was  provided  that,  whereas, 
the  said  C  D  was  indebted  to  said  A  B  in  the  sum  of  $  ,  as  evi- 
denced by  his  promissory  note,  dated  on  the  day  of  ,  A.  D. 
18  ,  whereby  the  said  C  D  promised  to  pay  to  the  order  of  the 
said  A  B,  the  said  sum  of  $  ,  (with  interest,  if  in  note,)  in 
days  (months,  or,  years,  as  the  note  is,)  from  the  date  thereof. 
Now,  if  the  said  C  D  shall  pay  to  the  said  A  B  the  said  sum  of  $ 
,  (with  interest  thereon,)  according  to  the  tenor  and  effect  of 
said  note,  then  this  bill  of  sale  to  be  void ;  otherwise  to  be  and  re- 
main in  full  force  and  effect  in  law.  And  the  said  plaintiff  further 
says  that  he  indorsed  on  said  bill  of  sale  the  said  sum  of  $  ,  as 
being  then  justly  due  and  unpaid  thereon  and  secured  thereby, 
and  did,  on  the  day  of  ,  a.  d.  18  ,  make  oath  thereto 
before  one  ,  he,  said  ,  being  then  a  justice  of  the  peace 
within  and  for  said  county  of  ,  and,  on  the  day  of  , 
A.  d.  18  ,  said  plaintiff  did  deposit  said  bill  of  sale,  with  the 
amount  justly  due  and  unpaid  thereon  indorsed  thereon  and  veri- 
fied by  the  oath  of  said  plaintiff  with  the  recorder  of  the  county 
of  ,  (or,  with  the  township  clerk  of  ,  as  the  case  may 
be;)  and  the  plaintiff  further  saith  that  the  time  for  the  pay- 
ment of  said  sum  named  in  the  said  condition  has  elapsed, 
yet  that  said  C  D,  though  often  requested,  has  not  paid  said 
sum  of  money  named  in  said    condition,  nor  any  part    thereof, 


EQUITY    FORMS.  731 


but  that  the  said  sum  of  $  ,  with  the  interest  thereon,  accord- 
ing to  the  tenor  and  effect  of  said  note,  is  still  due  and  payable. 

(If  there  are  other  mortgagees,  or  liens  on  the  same  property  by  levy, 
such  parties  must  be  brought  in.  In  that  case  proceed  as  follows:') 

And  the  said  plaintiff  further  saith  that  E  F,JH,  and  E  TV 
claim  to  have  liens,  either  by  subsequent  bills  of  sale  or  by  levies 
of  executions  thereon,  and  said  plaintiff  calls  on  said  defendants 
to  set  up  by  answer  all  and  any  liens  that  either,  or  all  of  them, 
may  have  on  said  property,  and  how  said  liens  originated,  and  the 
amount,  date,  and  consideration  thereof. 

Wherefore  the  plaintiff  prays  that  an  account  may  be  taken  of 
the  amount  due  the  plaintiff,  and  any  amounts  which  said  defend- 
ants or  either  may  claim  to  be  clue  them,  and  being  a  lien  on  said 
property,  and  that  said  C  D  may  be  ordered  to  pay  the  plaintiff's 
demand  so  to  be  found  due  in  a  time  to  be  fixed  by  the  court,  and 
in  default  of  such  payment,  that  an  order  issue  to  the  sheriff  of 
this  county,  commanding  him  to  advertise  and  sell  said  property, 
and  apply  the  proceeds  on  the  several  claims  so  to  be  found  due 
according  to  the  respective  dates  of  said  liens,  and  for  such  other 
and  further  relief  as  equity  and  the  nature  of  the  case  may  require. 

D  B  H,  Attorney  for  Plaintiff. 

The  law 'governing  mortgages  of  personal  property  is  pretty 
well  settled.  The  first  mortgage  vests  the  legal  title  of  the  prop- 
erty included  in  it  in  the  first  mortgagee;  and  on  a  failure  to  pay, 
the  mortgagee  has  a  legal  right  to  take  possession  of  the  same,  into 
whosesoever  hands  it  may  have  come.  But  the  mortgagor  has  an 
equity  in  any  surplus,  which  he  may  mortgage  to  a  second  mort- 
gagee, who  will  be  entitled  to  any  surplus.  Creditors,  having 
judgments,  may  levy  executions  i hereon,  and  thereby  acquire  a 
lien  on  the  equity  of  the  mortgagor.  In  order  to  obtain  a  sale  and 
distribution,  the  mortgagee  or  creditors  having  liens  thereon  may, 
by  a  petition  in  equity,  force  a  sale  of  the  property  and  distribu- 
tion of  the  proceeds  according  to  the  date  of  the  several  liens. 

As  to  description  of  the  property  mortgaged. — The  principle  to  be 
deduced  from  the  cases  is  that  any  description,  which  will  enable 
third  persons  to  identify  the  property,  aided  by  inquiries,  which 
Hi"  mortgage  itself  indicates  and  directs,  are  sufficient.  Thus  a 
mortgage  of  all  tin'  stock-,  tools,  and  chattels  belonging  to  the 
mortgagor,  in  and  about  the  wheelwright-shop  occupied  by  him, 
is  not  void  as  against  creditors;  and  the  mortgagee  may  show,  by 


732  EQUITY    FORMS. 


parol  evidence,  what  articles  were  in  and  about  the  shop  when  the 
mortgage  was  made.  Lawrence  v.  Evants,  7  Ohio  St.  194,  196. 
In  the  opinion  on  this  point,  the  following  cases  are  cited,  to  wit : 
Harding  r.  Colburn,  12  Met.  333 ;  Morse  v.  Pike,  15  K  H,  529  ; 
Burdett  v.  Hunt,  25  Maine,  419;  Wolf  v.  Dorr,  24  lb.  104;  Wins- 
low  v.  Merch.  Ins.  Co.,  4  Met.  306.  So  of  an  unfinished  article,  if 
enough  of  it  is  put  together  to  enable  one  to  identify  it,  that  is 
sufficient.  lb.;  Galen  v.  Brown,  22  N.  Y.  37 ;  Concklin  v.  Shelley, 
28  lb.  360. 

A  mortgage  of  personal  property,  which  leaves  the  same  in  the 
hands  of  the  mortgagor  with  authority  to  sell  what  is  on  hand 
and  replace  the  same  hy  new  purchases,  is  void  as  against  other 
creditors.  Freeman  v.  Eawson,  5  Ohio  St.  1  ;  Harman  v.  Abbe}', 
7  lb.  218.  If  the  power  of  disposition  appear  on  the  face  of  the 
mortgage,  or  is  fairly  to  be  inferred  from  its  provisions,  it  is  the 
duty  of  the  court  to  declare  it  void  without  submitting  the  matter 
to  the  jury.  lb.  But,  if  it  does  not  so  appear  in  the  mortgage,  a 
parol  agreement  to  that  effect  may  be  shown  by  parol  evidence, 
and  that  will  avoid  the  mortgage.  A  chattel  mortgage  on  the 
stock  in  a  store,  and  such  as  shall  be  subsequently  acquired  by 
mortgagor,  is  not  a  lien  on  after-acquired  stock.  Chapman  v. 
Wcimer,  4  Ohio  St.  481.  It  is  good  for  what  is  there.  Gorder  v. 
McEwen,  19  K  Y.  123;  28  lb.  360. 

The  rights  of  the  mortgagor  and  mortgagee  of  personal  prop- 
'erty  is  clearly  stated  by  Porter,  J.,  in  the  case  of  Hall  v.  Sampson, 
35  1ST.  Y.  274,  277.  He  says  :  "  The  execution  of  the  chattel  mort- 
gage invested  the  plaintiff  with  the  title,  subject  to  be  defeated  by 
subsequent  performance  of  the  condition.  The  right  of  posses- 
sion ordinarily  follows  that  of  property,  and  both  would  have 
passed  under  the  transfer,  in  the  absence  of  any  express  or  implied 
agreement  for  the  retention  of  the  goods  by  the  mortgagor.  It 
has  been  held  in  some  of  the  cases,  that  no  such  agreement  can  be 
implied  from  provisions  substantially  like  those  contained  in  the 
present  mortgage.  Eich  v.  Milk,  20  Barb.  616 ;  Chadwick  v. 
Lamb.  20  lb.  518.  The  court  below  held  otherwise,  and  in  their 
conclusion  on  this  branch  of  the  case  we  concur.  The  mortgage 
specifically  defines  the  circumstances  under  which  the  grantee  should 
be  entitled  to  the  right  of  possession  ;  and  this  evinces  the  mutual 
intent  of  the  parties  that,  until  it  vested  in  the  mortgagee,  it  should 
remain  in  the  mortgagor.  His  possessory  right  was  to  terminate 
on  the  failure  to  pay  the  debt  at  the  time  named,  or,  at  such  earlier 
time  as  might  be  fixed  by  the  election  of  the  mortgagee,  if  in  good 


EQUITY   FORMS.  733 


faith  he  should  deem  himself  insecure.     On  the  29th  of  June  there 
had  been  no  breach  of  the  condition ;  and  we  entertain  no  doubt 
that  Walpole  (the  mortgagor)  had  then  an  interest  in  the  piano, 
which  justified  the  defendant  in  taking  it  under  the  attachment. 
Carpenter  v.  Town,  Lalor,  72.     But  that  interest  terminated  on  the 
5th  of  October,  when  the  plaintiff,  finding  his  debt  insecure,  exer- 
cised his  right  under  the  mortgage  to  treat  the  condition  as  broken. 
His  act  in  taking  possession  of  the  bulk  of  the  property,  was  an 
assertion  of  his  claim  and  an  enforcement  of  the  forfeiture.     From 
that  time  he  had  the  right  of  possession,  as  well  as  the  legal  title  ; 
and  the  authority  of  the  sheriff  ended,  with  the  interest  of  the 
debtor.     Galen  v.  Brown,  22  X.  Y.  37,  41.     The  piano  was  then 
at  the  house  of  Jones,  where  the  defendant  subsequently  seized  it, 
under  his  execution  in  the  attachment  suit,  removed  it  from  the 
premises,  and  sold  it  at  public  auction  ;  no  demand  was  made  by 
the  plaintiff,  and  none  was  necessary.     The  officer  had  no  author- 
ity for  the  seizure  and  sale  of  his  property.     It  was  the  wrongful 
appropriation  of  the  goods  of  one  to  pay  the  debt  of  another." 
The  action  in  this  case  was  an  action  against  the  officer  for  the 
conversion  of  the  piano,  and  he  was  held  liable.     So  where  the 
mortgagor  of  chattels  in  possession,  after  default  in  the  payment 
of  the  debt,  fraudulently  delivered  the  goods  to  another,  as  his 
own.  and  got  him  to  sell  the  same,  it  Avas  held  that  the  agent,  who 
sold  the  goods,  was  personally  liable  to  the  mortgagee  for  their 
value.      Spraights  v.  Hawley,  39  X.  Y.  441.      The  court  say  that 
mere  possession  of  personal  chattels  is  not  such  evidence  of  owner- 
ership,  as  to  protect  a  bona  fide  purchaser  against  the  real  owner. 
The  vendor  of  personal  chattels  can  give  no  better  title  than  he 
has.     Woodruff,  J.,  says  :  •■  That  the  authorities  seem  to  me  decis- 
ive in  this  ease  of  the  principle  that  the  agent,  in  a  tortious  con- 
version of  another's  property,  is  liable,  when  his  principal  is  guilty 
of  the  tort ;  and  even  though  the  agent  act  innocently,  in   good 
faith,  relying  on  the  possession  and  apparent  authority  (if  posses- 
sion he  deemed  such)  of  his  principal."     Perkins  v.  Smith,  1  Wils. 
328;  Stephens  v.  Elwell,  4  M.  &   S.  259;  McCombie  v.  Davis,  6 
;  Baldwin    r.   Cole.   6    -Mod.  212;  Throop  v.  Bussing,  11 
Johns.  285;   Farrar  v.  Chauffitch,  5  Denio,  527;  Pierson  v.  (Ira- 
ham.:;.:  Eng.  0.  L.  168;   Everetl  v.  Coffin,  6  Wend.  GOO;  Spencer 
r.   Bhickman.   lb.    167 J    Williams  r.  Merle,   11   lb.  80.       "And    all 
these  cases,"  continues  the  judge,  "  recognize  and  affirm  the  more 
genera]  rule  above  stated,  that  he  who  intermeddles  with  personal 
property   not  his  own,  must  see  to  it  that  he  is  protected  by  the 


734  EQUITY   FORMS. 


authority  of  one,  who  is  himself,  by  ownership  or  otherwise, 
clothed  with  the  authority  he  attempts  to  confer.  ...  So  long 
as  it  is  true  that  a  mortgage  given  in  good  faith,  and  for  a  sufficient 
consideration,  is  valid,  notwithstanding  possession  may  be  in  the 
mortgagor,  so  long  such  possession  no  more  involves  culpable  neg- 
ligence or  laches  in  the  mortgagee,  than  the  possession  of  a  ser- 
vant, hirer,  or  other  bailee,  imports  negligence  in  the  owner.  In 
truth,  so  long  as  mere  possession  does  not  impart  authority  to  sell, 
the  negligence,  if  any,  is  on  the  part  of  him  who  relies  upon  it, 
and  not  on  the  owner  who  permits  it."  In  Mattison  v.  Baucus, 
1  N.  Y.  295,  it  was  held  that  no  levy  could  be  made  when  the  prop- 
erty was  in  possession  of  the  mortgagee.  The  interest  of  mort- 
gagor is  a  mere  right  to  redeem.  No  action  will  lie  on  such  a 
mortgage  to  recover  the  money  named  therein,  unless  there  is  a 
covenant  to  pay  contained  in  it.  Culver  v.  Sisson,  3  N.  Y.  264. 
Vide,  on  this  point,  Briscoe  v.  King,  Cro.  Jac.  28 ;  Suffield  v.  Bask- 
eroil,  2  Mod.  30  ;  Smith  v.  Stewart,  6  Blackf.  162  ;  Scott  v.  Field, 
7  Watts,  360 ;  Drummond  v.  Eichards,  2  Munf.  337  ;  Salisbury  v. 
Phillips,  10  Johns.  57. 

Vide  also,  on  the  subject  of  the  mortgage  of  personal  chattels, 
Hope  v.  Haley,  5  E.  &  B.  829 ;  S.  C,  85  Eng.  C.  L.  829  ;  Congreve 
v.  Evetts,  10  Exck.  298;  3  H.  &  N.  964  ;  95  Eng.  C.  L.  471  ;  1  C. 
B.  379  ;  95  Eng.  C.  L.  798  ;  Brown  v.  Tanner,  L.  E.,  3  Ch.  Ap. 
597 ;  Bell  v.  Blyth,  L.  E.,  6  Eq.  Cases,  201 ;  L.  E.,  3  C.  B.  38. 

In  order  to  keep  a  chattel  mortgage  alive  as  against  creditors,  it 
must  be  filed  in  the  proper  office  from  year  to  year.  The  lapse  of 
a  full  year  without  such  renewal  by  filing,  will  at  any  time  render 
the  instrument  invalid  as  against  creditors.  Each  refiling  places  it 
on  the  footing  of  a  new  mortgage,  for  the  purposes  of  notice. 
The  year  within  which  any  filing  must  be  made,  begins  to  run 
from  the  exact  time  of  the  preceding  filing,  and  is  completed  at  the 
corresponding  day  and  hour  of  the  following  year.  Seaman  v. 
Eager,  16  Ohio  St.  209.  The  refiling  must  be  made  within  the  last 
.thirty  days  of  the  year  ;  and,  if  the  last  day  comes  on  Sunday,  the 
refiling  must  not  be  later  than  the  Saturday  preceding.  The  orig- 
inal refiled  is  a  compliance  with  the  statute.  1  S.  &  C.  474,  sec.  4  ; 
Payne  v.  Mason,  7  Ohio  St.  198.  A  mortgagee  of  personal  chattels 
may  pay  off  a  prior  levy  or  attachment,  and,  on  a  sale,  he  will  be 
entitled  to  retain  the  sum  so  paid  as  against  liens  subsequent  to 
his  mortgage.  Armstrong  u.  McAlpin,  18  Ohio  St.  184.  White,  J. : 
"  The  mortgagees,  to  obtain  possession  and  protect  their  title,  might 
purchase  prior  liens  ;  and,  if  they  did  so,  and,  by  the  enforcement 


EQUITY   FORMS.  735 


of  the  mortgage,  such  liens  should  be  technically  extinguished, 
yet,  for  the  money  thus  expended,  a  corresponding  equity  would 
arise,  in  their  favor,  in  the  property.  The  latter  had  the  legal 
title,  and  were  in  possession  of  the  fund.  The  subsequent  attach- 
ment creditors  attached  the  property,  it  is  true,  but  the  operation 
of  their  attachments  was  limited  to  the  interest  of  their  debtor, 
which  was  subordinate  to  the  prior  attachments  and  to  the  mort- 
gage." In  the  case  of  Dillingham  v.  Bolt,  37  N.  Y.  198,  it  was  held 
that,  if  the  mortgagor  had  left  the  State,  there  could  be  no  rending 
of  it,  since  it  must  be  refiled  in  the  township  where  he  resided. 
Our  statute,  in  case  of  the  mortgagor's  having  left  the  State,  pro- 
vides for  refiling  it  in  the  township  where  it  was  first  filed. 

The  present  statute  requires  the  true  amount  of  the  debt  to  be 
indorsed  on  the  back  of  the  mortgage,  and  sworn  to  by  the  mort- 
gagee. On  each  refiling,  a  new  statement  of  the  debt  ought  to  bo 
made  and  sworn  to,  though  it  may  not  be  absolutely  necessary  that 
it  should  be  sworn  to.  as  the  section  about  refiling  only  says  the 
copy  or  original  shall  be  filed  together  with  a  statement  exhibiting 
the  interest  of  the  mortgagee  in  the  property  at  that  time.  This 
interest  is  shown  by  a  statement  of  what  is  due  the  mortgagee  at 
that  time.  There  is  here  nothing  said  about  the  oath.  An  amend- 
ment to  section  2  introduced  this  provision  as  to  swearing  to  the 
amount  in  the  first  place,  but  leaves  section  4  as  it  originally  stood. 
1  S.  &C.  475,  476;  S.  &  S.  293. 

From  these  authorities  may  be  gathered  what  are  the  rights  and 
remedies  of  parties  to  a  chattel  mortgage.  The  mortgagee,  once 
in  possession  of  the  goods,  may  sell  the  same  ;  and  he  will  be  re- 
quired to  account  for  the  fair  value  of  the  same,  or  what  he  got  for 
them,  on  what  is  found  to  be  an  honest  and  fair  sale.  Armstrong 
v.  ItcAlpin,  18  Ohio  St.  184. 

In  the  case  of  Ashley  v.  Wright,  19  Ohio  St.  291,  it  was  held  that 
the  mortgagee  might  maintain  replevin  for  the  recovery  of  the 
mortgaged  property,  and  even  before  the  debt  was  due,  if  the 
mortgage  contained  a  provision  that,  if  the  mortgagor  should  com- 
mit waste,  or  misuse,  or  attempt  to  secrete  or  remove  the  property, 
the  mortgagee  mighl  take  possession,  and  creditors  of  the  mort- 
gagor were  levying  executions  on  the  property,  that  authorized 
the  mortgagee  to  take  possession.  Vide  also  Smith  v.  Worman,  19 
lb.  145. 

In  the  ease  of  Morgan  v.  Spangler,  20  Ohio  St.  38,  it  was  ruled 
that  where  a  creditor  of  the  mortgagor  of  personal  property  causes 
the  same  to  be  seized  by  legal  process  for  the  satisfaction  of  his 


EQUITY   FORMS. 


debt,  he  acquires  thereby  a  lien  upon  the  property,  subject  to  the 
rights  of  the  mortgagee,  and  may  sustain  an  action  against  the  latter 
to  redeem  the  property,  or  for  other  equitable  relief.  And  that  to  an 
action  of  replevin  by  such  mortgagee  against  the  officer  holding 
the  property  by  virtue  of  such  process,  the  creditor  may  cause 
himself  to  be  made  a  party  defendant,  and  by  counter-claim 
therein  may  set  up  and  enforce  his  said  right  to  relief.  This  last 
proposition,  so  far  as  it  refers  to  a  counter-claim,  is  doubtful.  Nay, 
I  should  unhesitatingly  say  not  law,  unless  the  court  had  said  it 
was.  There  is  no  authority  in  the  code  of  converting  a  bill  in 
equity  into  a  counter-claim.  That  represents  an  action  at  law,  and 
only  that.  In  this  case,  the  creditor  had  a  right  to  file  a  bill  in 
equity,  to  compel  a  sale  of  the  property  and  the  distribution  of  its 
proceeds,  according  to  the  rights  of  the  parties  having  an  interest 
therein.  But  the  mortgagee  was  entitled  to  the  possession  of  the 
property,  and  no  court  could  restrain  him  from  obtaining  the  pos- 
session of  his  own  property.  The  error  is  in  calling  what  is  in  fact 
a  petition  in  equity,  like  that  of  a  subsequent  mortgagee  on  land, 
or  judgment  creditor  against  the  first  mortgagee  for  the  sale  of  the 
equity,  or  of  the  whole  title,  and  for  distribution  of  the  proceeds, 
a  counter-claim.  The  plaintiff  in  replevin  is  entitled  to  his  judg- 
ment, and  the  creditor  to  his  bill,  to  redeem  or  force  a  sale  and 
distribution.  It  introduces  infinite  confusion  and  uncertainty  by 
thus  converting  independent  rights  of  action  into  a  counter-claim, 
since  the  counter-claim  must  be  tried  by  a  jury,  if  the  plaintiff's 
cause  of  action  is  to  be  so  tried.  There  is  no  authority  in  the  code 
to  try  a  part  of  a  case  by  a  jury  and  a  pai^t  by  the  court. 

A  stipulation  in  a  chattel  mortgage  that  the  mortgagor  shall  re- 
main in  possession  and  sell  the  goods  and  pay  proeeeds  to  mort- 
gagee, does  not  render  the  mortgage  void.  Kleine  v.  Jvatzcn- 
berger,  20  Ohio  St.  110. 

5.    PETITION    BY    CREDITOR   AGAINST    MORTGAGEE   OF   PERSONALTY. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F,  de- 
fendants, for  that,  heretofore,  to  wit,  at  the  term  of  the  Court 
of  ,  within  and  for  the  county  of  ,  the  said  plaintiff  re- 
covered a  judgment,  by  the  consideration  of  said  court,  against 
the  said  C  D,  for  the  sum  of  $  ,  with  interest  from  the  day 
of  ,  a.  d.  18  ,  and  that  he  caused  an  execution  to  bo  issued 
thereon,  dated  on  the  day  of  ,  a.  d.  18  ,  and  delivered 
the  same  to  ,  sheriff  of  said  county,  and  that  said  sheriff,  on 
the         day  of            -,  a.  d.  18      ,  levied  said  execution  on  the  fol- 


EQUITY    FORMS.  737 


lowing  goods  and  chattels  of  said  C  D,  to  wit,  (here  describe  the 
goods  seized  on  the  execution,)  and  that  the  said  E  F  then  set  up  a 
claim  to  said  goods  and  chattels  so  levied  on,  under  a  chattel  mort- 
gage given  by  the  said  CD  to  said  E  F,  on  the  day  of  , 
a.  d.  18  ,  and  which  mortgage  had  duly  indorsed  thereon  the  fol- 
lowing amount,  to  wit,  8  ,  as  due  and  unpaid  thereon,  under 
the  oath  of  the  said  E  F,  and  which  bill  of  sale  was  filed  so  in- 
dorsed, and  sworn  to,  with  the  clerk  of  the  township  of  , 
where  said  C  D  then  resided,  (or,  with  the  recorder  of  said  county, 
located  in  the  township  of  ,  where  said  C  D  then  resided.) 
and  that  said  E  F  sets  up  a  claim  to  said  property  under  said 
mortgage;  and  said  plaintiff  avers  that  said  goods  so  mortgaged 
and  levied  on  are  of  greater  value  than  the  said  sum  indorsed  on 
said  mortgage,  and  that  he  denies  that  there  is  that  amount  due 
thereon  to  said .  E  F,  and  that  he  avers  that  said  E  F  should,  in  his 
answer,  set  up  his  said  pretended  claim,  and  state  the  amount  he 
claims  to  be  still  due  thereon.  [If  there  are  other  persons  claiming 
liens  on  same,  they  should  be  made  defendants,  by  simply  averring 
that  G  H,  etc.,  set  up  some  claim  or  lien  to  said  goods,  but  which 
the  plaintiff  avers  is  subsequent  in  date  to  his,  and  he  calls  on  them 
to  set  up  in  an  answer  what  their  claim  is,  and  the  date  and  amount 
and  consideration  thereof,  and  also  the  date  when  their  pretended 
lien  attached.] 

Wherefore  the  plaintiff  prays  that  an  account  may  be  taken  of 
the  amount  due  the  plaintiff  from  said  C  D  on  said  judgment,  and 
the  amounts  due  to  the  defendants  respectively,  and  the  date  of  the 
respective  liens  of  each,  and  that,  unless  said  defendant  pays  the 
Mini  so  found  due  to  the  plaintiff,  at  a  day  to  be  named,  an  order 
:.ssue  to  the  sheriff  of  this  count}',  commanding  him  to  advertise 
and  sell  said  goods  as  upon  execution,  and  that  the  proceeds  of  said 
sale  be  distributed  to  the  several  parties,  according  to  the  liens  of 
each,  and  for  such  other  and  further  relief  as  the  nature  of  the  case 
may  in  equity  require. 

E  T  H,  Attorney  for  Plaintiff. 

If  the  plaintiff's  claim  arises  on  a  subsequent  mortgage,  he  will 
set  that  out  as  in  the  preceding  form,  and  then  add  averments  as 
to  any  prioi  mortgage  or  subsequent  one,  or  liens  by  execution. 
On  such  a  petition,  the  whole  equities  of  the  parties  may  be  ad- 
justed, property  sold,  and  distribution  made  according  to  equity 
and  law. 

vol.  i — 47 


738  EQUITY    FORMS. 


0.     PETITION    ON    MORTGAGE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  G  H, 
and  J  K,  defendants,  for  that  the  said  C  D  did,  on  the         day  of 
,  a,  d.   18     ,  at  ,   {place  of  date,)  make  his  certain 

promissory  note  in  writing  of  that  date,  and  then  and  there  deliver 
the  same  to  the  said  E  P,  and  thereby  promise  to  pay  to  the  said 
E  F,  or  order,  the  sum  of  %         ,  in  after  date  thereof,  and  the 

said  E  F  then  and  there  indorsed  and  delivered  the  same  to  the 
said  plaintiff;  and  the  said  plaintiff  further  saith  that  the  said  C  D, 
to  secure  the  payment  of  the  said  promissory  note,  did,  at  the 
same  time,  duly  execute  and  deliver  to  the  said  E  F,  his  certain 
deed  in  writing,  and  thereby  conveyed  to  the  said  E  F  his  heirs 
and  assigns,  in  fee  simple,  the  following  lands  and  tenements,  situ- 
ate in  said  county  of  ,  to  wit,  ,  {here  describe  the  lands  as 
in  the  mortgage,')  and  which  deed  of  conveyance  had  a  condition 
thereunder  written,  providing  that,  if  the  said  C  D  should  well 
and  truly  pay  the  said  promissory  note,  according  to  its  tenor  and 
effect,  to  the  said  E  F,  or  his  order,  then  said  deed  should  be  void  ; 
otherwise  it  was  to  be  and  remain  in  full  force  and  virtue  in  law  ; 
and  the  said  deed  of  mortgage  was  duly  recorded  in  the  office  of 
the  recorder  of  said  county,  on  the  day  of  ,  a.  d.  18  ; 
and  the  said  plaintiff  further  saith  that  the  said  C  D  did,  by  his 
deed  duly  executed  and  delivered,  convey  to  the  said  G  H  his 
equity  of  redemption  in  and  to  the  said  premises,  to  secure  to  him 
the  said  G  H,  the  payment  of  the  sum  of  $  ,  to  be  paid  to  him, 
the  said  G  H,  in  after  date,  with  a  like  condition  thereunder 
written,  in  case  said  last-named  sum  of  money  should  not  be  paid  ; 
which  last-named  deed  of  mortgage  was  duly  recorded  in  the  rec- 
ords of  said  county  on  the  day  of  ,  a.  d.  18  ;  and  the 
said  A  B  further  saith  that  the  said  C  D  afterward,  on  the  day 
of  ,  a.  D.  18  ,  by  his  deed  duly  executed  and  delivered,  con- 
veyed all  his  right,  title,  and  interest  in  and  to  the  said  premises 
to  the  said  J  K,  who  is  now  in  the  occupation,  and  enjoying  the 
use  of  the  said  premises  ;  and  the  said  plaintiff  further  avers  that 
the  said  C  D  did  not,  when  the  said  promissory  note  became  due 
and  payable,  pay  the  said  sum  of  $  ,  named  therein,  according 
to  the  tenor  and  effect  thereof;  nor  hath  the  said  C  D,  or  any  one 
for  him,  since  or  before  said  note  became  due,  paid  the  same  to 
either  the  said  E  F,  while  he  so  held  the  same,  or  to  the  said 
plaintiff,  since  he  became  the  holder  thereof,  or  to  either  of  them 
at  any  time. 


EQUITY    FORMS.  739 


The  said  plaintiff,  therefore,  prays  that  an  account  may  be  taken 
of  the  amount  due  him  in  the  premises,  and  that  a  judgment  may 
be  rendered  that,  unless  said  sum  is  paid,  by  a  fixed  day,  with  costs 
of  suit,  the  said  lauds  may  be  ordered  to  be  sold  according  to  law, 
to  satisfy  said  sum  and  costs. 

The  plaintiff  need  only  ask  for  the  relief  he  wants.  He  makes 
the  others  parties  only  to  cut  off  their  right  to  redeem,  so  that  the 
court  can,  on  its  order,  make  a  clear  title.  The  balance,  of  course, 
after  paying  the  judgment  of  the  plaintiff,  must  go  to  the  defend- 
ants, according  to  their  respective  rights.  These  rights  can  be 
found  on  a  reference  to  a  master,  or  by  the  court,  and  entered  in 
the  order  of  sale,  as  formerly  in  a  decree.  If  the  claim  of  the 
plaintiff  is  paid  before  judgment  and  order  of  sale,  the  action  is  at 
an  end ;  the  defendants  can  not  prosecute  it  for  their  benefit. 
After  a  decree,  all  parties  to  the  decree  would  have  the  right  to 
insist  on  a  sale. 

7.    VENDEE  V.  VENDOR,  FOR   SPECIFIC   PERFORMANCE    OF    A    REAL  CON- 
TRACT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  C  D,  on  or  about  the         day  of  ,  A.  D.  18     ,  was 

seized  in  fee  simple  of  a  certain  tract  of  land,  situate  in  the  said 
county  of  ,  and  which   is  hereinafter  more  particularly  de- 

scribed ;  and  the  said  C  D  did  then  enter  into  an  agreement  with 
the  said  plaintiff,  in  writing,  signed  by  the  said  C  D,  (or,  b}T  E  F, 
his  agent  for  that  purpose  duly  authorized,)  whereby  the  said  C  D 
did  agree  to  sell,  and  did  sell,  to  the  said  plaintiff  the  following 
tract  of  land,  to  wit,  (Jiere  describe  it  as  in  the  contract^)  for  the  sum 
of  8  ,  payable  as  follows :  (here  set  forth  the  amounts  and  time 
of  payment  as  in  contract,}  and  to  convey  the  said  premises  to  the 
said  plaintiff,  in  lee  simple,  by  deed  of  general  warranty,  on  the 
payment  of  the  said  several  sums  of  money  as  aforesaid,  (or,  on 
the  payment  of  the  last  of  the  said  several  sums  of  money  as  afore- 
said ;)  and  the  sai<l  plaintiff  further  saith  that  the  said  C  D,  under 
the  said  contracl  of  Bale,  delivered  to  the  said  plaintiff  the  posses- 
sion of  the  said  premises;  ami  that  he,  the  said  plaintiff,  has  ever 
since  remained  in  possession  thereof,  with  the  assent  and  permis- 
sion of  the  said  C  D,  and  has.  with  the  like  assent  and  permission 
of  the  Baid  < '  l».  made  lasting  and  valuable  improvements  thereon  ; 

ami  the  said  plaintiff  saith  that  he  has  paid  to  the  said  C  D,  at  vari- 
ous tunes,  since  the  first  of  said  installments  became  due,  the  sum 


740  EQUITY    FORMS. 


of  8  ,  leaving  due,  as  ho  avers,  on  ,the  day  of  ,  a.  d. 

18  ,  to  the  said  C  D,  on  the  said  contract  of  sale,  the  sum  of  8 
which  last-named  sum  the  said  plaintiff  did,  on  the  said  day  of 
aforesaid,  tender  and  offer  to  the  said  C  D,  and  request  him, 
the  said  C  D,  to  receive  the  said  money,  and  convey  the  said  premises 
to  the  said  plaintiff,  according  to  the  terms  of  his  said  agreement; 
and  the  said  plaintiff  did  then,  with  said  money,  present  to  the  said 
C  D  a  deed  of  general  warranty,  duly  prepared  to  convey  said 
premises  to  the  said  plaintiff,  according  to  the  said  agreement,  and 
request  said  C  D  to  execute  and  deliver  the  same ;  hut  the  said  C  I) 
did  not,  nor  would  he,  receive  the  said  sum  of  money  so  tendered, 
and  execute  the  said  deed  so  prepared  and  tendei-ed,  but  wholly 
refused  so  to  do;  and  the  said  plaintiff  now  brings  here  into  court 
the  said  sum  of  8  ,  and  offers  the  same  to  the  said  C  D,  accord- 

ing to  the  said  agreement,  and  he  also  brings  the  said  deed,  so  pre- 
pared, ready  for  the  said  C  D  to  execute  and  deliver  according  to 
his  said  agi'eement. 

The  said  A  B  therefore  prays  that  the  said  C  D  maybe  adjudged 
to  receive  the  said  sum  of  8  ,  so  tendered,  and  to  execute  and  de- 
liver the  said  deed  of  conveyance  so  prepared,  and  convey  the  said 
premises  to  the  said  A  B,  in  fee  simple,  by  deed  of  general  warranty. 

This  form  is  sufficient  for  a  verbal  contract,  as  it  sets  forth  a  part 
performance.  It  is  always  well  enough  to  insert  these  averments, 
when  the  money  has  not  been  paid  promptly  at  the  day,  to  show- 
that  the  vendor  has  waived  a  strict  performance  of  the  contract. 
Where  the  vendee  has  never  been  in  possession,  and  fails  to  pay 
according  to  his  contract,  the  vendor  can  rescind  by  tendering  to 
the  vendee  his  notes  and  contract,  and  notifying  him  that  the  con- 
tract is  at  an  end.  Bemington  v.  Kelleys,  7  Ohio  (pt.  2),  97.  If, 
however,  any  part  of  the  purchase  money  has  been  paid,  this  also 
must  be  tendered  back,  unless  it  is  declared  to  be  forfeited  in  case 
the  balance  is  not  paid.  Scott  v.  Fields  et  al.,  7  Ohio  (pt.  2),  90. 
Where  the  purchaser  has  delayed  a  long  time  to  pay,  the  court 
will  not  aid  him,  unless  the  vendor  has  permitted  him  to  remain 
in  possession,  and  make  improvements,  and  has  treated  the  con- 
tract as  a  continuing  and  subsisting  contract.  So  long  as  the  par- 
ties do  this,  a  court  will  enforce  its  specific  performance.  The 
vendor  must  do  some  specific  act,  in  such  a  case,  to  terminate  the 
agreement.  Higby  v.  Whittaker,  8  Ohio,  198 ;  Brown  v.  Haines 
et  al.,  12  lb.  1 ;  Brewer  v.  State  of  Connecticut  et  al.,  9  lb.  189  ; 
Fuller  v.  Perkins  et  al.,  7  lb.  (pt.  2),  196  ;  17  N.  Y.  125.      In  this 


EQUITY    FORMS.  741 


case  it  was  held  that  a  mortgagee  of  the  land  sold,  and  the  sale  of 
which  was  sought  to  be  enforced,  could  not  be  made  a  party  to  a 
bill  for  specific  performance.  3  M.  &  Craig,  63;  Jacob,  -490,  494; 
4  M.  &  Craig,  4G0 ;  10  Simmons,  714;  1  Daniel  Ch.  Pr.  714. 
Johnson,  C.  J.,  said,  in  the  case  first  cited  (17  N.  Y.  130),  that  "the 
point  in  this  case  is  so  well  considered  and  so  clearly  settled  in  Tas- 
ker  v.  Small,  3  M.  &  Craig,  63,  that  it  will  be  only  necessary  for 
me,  in  disposing  of  this  case,  to  repeat  a  part  of  Lord  Cottenham's 
judgment:  'Generally,  to  a  bill  for  a  specific  performance  of  a 
contract  of  sale,  the  parties  to  the  contract  are  the  only  proper 
parties;  and  when  the  ground  of  the  jurisdiction  of  courts  of 
equity  in  suits  of  that  kind  is  considered,  it  could  not  properly  be 
otherwise.  The  court  assumes  jurisdiction  in  such  cases,  because 
a  court  of  law,  giving  damages  only  for  the  non-performance  of  a 
contract,  in  many  cases  does  not  afford  an  adequate  remedy ;  but 
in  equity,  as  well  as  at  law,  the  contract  constitutes  the  right  and 
regulates  the  liabilities  of  the  parties ;  and  the  object  of  both  pro- 
ceedings is  to  place  the  party  complaining  as  nearly  as  possible  in 
the  same  situation  as  the  defendant  had  agreed  he  should  be  placed 
in.  It  is  obvious  that  persons,  strangers  to  the  contract,  and  there- 
fore neither  entitled  to  the  rights,  nor  subject  to  the  liabilities 
which  arise  out  of  it,  are  as  much  strangers  to  a  proceeding  to  en- 
force the  execution  of  it,  as  they  are  to  a  proceeding  to  recover 
damages  for  the  breach  of  it.  The  prior  mortgagee  has  no  inter- 
est in  the  specific  performance  of  the  contract;  he  is  no  party  to 
it;  and  the  performance  of  it  can  not  affect  his  security,  or  inter- 
fere with  his  remedies.'  " 

Where  the  lands  have  been  sold  to  a  third  person,  by  the  vendor, 
the  vendee  can  still,  on  petition  against  both,  obtain  a  conveyance 
from  the  purchaser,  unless  he  be  a  bona  fide  purchaser,  without 
notice.  The  notice  may  be  actual  or  constructive.  Actual  notice 
is  when  the  purchaser  buys  with  a  full  knowledge  of  the  first  sale; 
constructive  notice  is  where  the  purchaser,  not  having  such  knowl- 
edge,  a  fact  exists  which  in  law  is  held  as  notice  to  all  the  world 
of  the  rights  of  the  vendee.  If  the  vendee  is  in  possession  of  the 
premises,  t his  is  nol \>-r  to  all  the  world  of  his  rights,  whatever  t hey 
maybe.  Kelly  v.  Stanbury,  13  Ohio,  408.  Nor  does  Ins  igno- 
rance of  (he  fact  of  such  possession  at  the  time  of  his  purchase 
make  any  difference.  So  decided  by  Supreme  Court  on  the  cir- 
cuit, in  <^iiinii  v.  Greer,  in  Gallia  county. 

The  purchaser  must,  of  course,  he  made  a  party;  and  the  aver- 
ment to  do  it  is  very  simple;  aver  that  the  said  CD  pretends  that 


742  EQUITY    FORMS. 


he  has  sold  and  convt  yed  the  said  premises  to  the  said  ,  on  a 

valuable  consideration  ;  but  the  said  "plaintiff  avers  that  the  said 
well  knew  of  all  the  rights  of  the  said  plaintiff  at  the  time  he  so  made 
his  purchase,  and  paid  his  money  thereon. 

8.    VENDOR   V.  VENDEE    ET    AL.,  FOR   SPECIFIC    EXECUTION    OF  A    REAL 

CONTRACT. 

The  said  A  B,  plaintiff,  complains  that  the  said  C  D  and  E  F, 
defendants,  for  that  the  said  A  B,  on  or  about  the         day  of  , 

A.  D.  18  ,  agreed  to  sell,  and  did  sell,  to  the  said  C  D,  the  follow- 
ing lands  and  tenement,  situate  in  the  said  county  of  ,  to  wit, 
(here  describe  the  land  as  in  contract,  if  there  is  no  mistake  in  it,)  and 
the  said  C  D  agreed  to  pay  to  the  said  plaintiff  therefor  the  sum 
of  $  ,  to  be  paid,  $  in  ,  and  $  in  ,  etc.,  for 
which  said  several  payments  the  said  C  D  gave  to  the  said  plaintiff 
his  several  promissory  notes  of  that  date,  payable  severally  at 
the  several  times  aforesaid,  and  the  said  plaintiff  executed  and  de- 
livered to  the  said  C  D  his  agreement  in  writing  of  that  date, 
thereby  promising  to  convey  the  said  premises  to  the  said  C  D  in 
fee  simple,  by  deed  of  general  warranty,  on  the  payment  of  the 
said  several  sums  of  money,  as  aforesaid  ;  and  the  said  plaintiff 
further  saith  that  he  put  the  said  C  D  into  possession  of  said  prem- 
ises, and  that  he  has  continued  to  occupy  the  same  up  to  this  pres- 
ent time,  and  that  the  said  C  D  has  paid  to  the  said  plaintiff,  on 
said  contract  of  purchase,  the  sum  of  $  ,  and  that,  on  the 
day  of  ,  a.  d.  18  ,  there  was  still  due  and  payable  to  the 
said  plaintiff,  from  the  said  C  D,  the  sura  of  $  ;  and  the  said 
plaintiff  did,  on  the  said  day  of  ,  a.  d.  18  ,  tender  and 
offer  to  deliver  to  the  said  C  D  his  deed,  duly  executed,  to  convey 
the  said  premises  as  aforesaid,  to  the  said  C  D,  together  with  his 
said  notes,  on  his,  the  said  C  D,  paying  the  said  sum  of  $  ,  the 
balance  of  said  purchase  money  so  due  as  aforesaid ;  but  the  said 
C  D  wholly  neglected  and  refused  to  pay  the  said  sum  of  $ 
due  as  aforesaid,  nor  has  he  yet  paid  the  same,  or  any  part  thereof, 
to  the  said  plaintiff ;  and  the  said  plaintiff  further  saith  that  the 
said  C  D  has  contracted  to  sell  to  the  said  E  F  the  following  de- 
scribed tract,  to  wit,  (here  describe  the  land,)  being  parcel  of  the 
said  premises  so  as  aforesaid  sold  by  the  said  plaintiff  to  the 
said  C  D. 

The  said  plaintiff  therefore  prays  that  an  account  may  be  taken 
of  the  amount  due  him  in  the  premises,  and  that  said  lands  may 


EQUITY    FORMS.  743 


be  sold,  according  to  law,  to  satisfy  said  sum  and  costs,  unless  the 
sum  so  found  due  and  costs  of  suit  are  paid  by  a  fixed  day. 

The  land  of  CD  must  be  first  sold,  and  where  there  has  been 
several  such  sales,  the  land  last  sold  must  be  first  subjected  to  the 
payment  of  the  purchase  money,  and  so  of  all  the  sales,  in  the  in- 
verse order  thereof.     Cary  v.  Folsom  et  al.,  14  Ohio,  365. 

0.    VENDOR  V.  VENDEE  ET  AL.,  TO    ENFORCE   VENDOR'S    LIEN. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  E  F,  G  H, 
and  J  K,  defendants,  for  that  the  said  plaintiff,  on  or  about  the 
day  of  ,  a.  d.  18     ,  was  seized  in  fee  simple  of  the  fol- 

lowing described  lands  and  tenements,  situate  in  the  said  county 
of  ,  to  wit,  (here  describe  them  truly;)  and  the  said  plaintiff 

did  then  sell  the  said  premises  to  the  said  C  D,  for  the  sum  of  8  , 
and  did  then  and  there,  by  his  deed  of  general -warranty,  duly 
executed  and  delivered  to  the  said  C  D,  convey  the  said  premises 
to  the  said  C  D,  his  heirs  and  assigns,  in  fee  simple;  and  the  said 
C  D  then  paid  to  the  said  A  B  the  sum  of  8  ,  part  of  said  pur- 
chase money,  and  also  gave  his  several  promissory  notes  of 
that  date;  one  for  8  ,  payable,  etc.,  (here  describe  them  all,)  and 
delivered  them  to  the  said  plaintiff,  to  secure  the  payment  of 
the  said  sum  of  8  ,  the  balance  of  said  purchase  money;  and 
the  said  plaintiff  saith  that  the  said  C  D  has  not  paid  either  of 
said  sums  of  money,  or  any  part  thereof;  but  that  there  is  now 
due  on  said  notes,  from  the  said  C  D,  to  the  said  plaintiff,  the  sum 
of  |  ,  which  the  said  C  D,  though  often  requested,  wholly 
neglects  and  refuses  to  pay ;  and  the  said  plaintiff  further  avers 
that  the  said  E  F  purchased  of  the  said  C  D  a  portion  of  said 
premises  with  the  full- knowledge  that  the  said  C  D  had  not  paid 
tin  balance  of  said  purchase  money,  as  aforesaid,  and  took  a  con- 
veyance from  the  said  C  D  to  him,  for  the  said  premises  so  by  him 
purchased  of  the  said  CD;  and  the  said  plaintiff  further  avers  that 
the  said  ('<  II  and  J  K  claimed  to  have  recovered  judgment  against 
(he  said  C   D  for  a    large  sum  of  money  at  the  term  of  t  Ins 

•  •ourt,  A.  D.  18  ,  and  have  severally  caused  an  execution  to  be 
issued  and  Levied  on  the  remainder  of  said  premises,  so  as  afore 
said  not  sold  to  the  said  B  P,  and  arc  proceeding  to  cause  the  said 
premises, so  levied  on,  to  be  appraised, advertised, and  sold;  whereby 
the  said  plaintiff  will  wholly  lose  the  balance  of  the  said  purchase 
money,  as  the  said  C  D  is  wholly  insolvent  and  unable  to  pay  the 
sainc 


744  EQUITY    FORMS. 


The  said  plaintiff  therefore  prays  judgment  against  the  said 
C  D  for  the  said  sum  of  $  ,  together  with  interest  thereon  from 
the         day  ,  a.  d.  18     ,  and  an  order  that  in  case  the  said 

C  D  shall  not  pay  the  said  judgment  by  a  short  day  to  be  named, 
the  said  premises  may  be  sold,  and  so  much  of  the  proceeds  as 
may  be  necessary  be  applied  to  the  payment  of  the  judgment  so 
to  be  rendered. 

As  to  liens  for  purchase  money,  vide  McArthur  v.  Porter,  1  Ohio, 
99;  Jackman  v.  Halleck,  1  lb.  318;  Tierman  v.  Beam,  2  lb.  383; 
Patterson  v.  Johnson,  7  Ohio  (pt.  1),  225;  Boosy.  Ewing  et  al.,  17 
Ohio,  500.  If  the  vendor  takes  security  on  his  notes  for  the  pur- 
chase money,  his  lien  is  gone.  Williams  v.  Roberts,  5  Ohio,  35  ; 
Mayhem  v.  Coombs  et  al.,  14  lb.  428,  435  ;  Follet  v.  Eeese  et  al., 
20  lb.  546.  One  who  loans  money  to  another  to  buy  land,  has  no 
lien  on  the  land.  He  is  not  a  vendor.  Stansell  v.  Eobei'ts  et  al., 
13  Ohio,  148.  There  is  no  lien  until  the  title  is  passed.  Brush  v. 
Adams,  14  Ohio,  20. 

10.    PETITION    BY   PARTNER   FOR   AN   ACCOUNT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F,  de- 
fendants, for  that  the  said  A  B,  on  or  about  the  day  of  ,  a.  d. 
18  ,  did  enter  into  partnership  with  the  said  C  D  and  E  F,  for  the 
purpose  of  carrying  on  the  business  of  ,  in  ,  in  the  county  of 
,  for  the  term  of  years  next  thereafter ;  that  the  said  plaintiff 
paid  in,  as  capital  to  the  said  business,  the  sum  of  $  ;  and  that  the 
C  D  paid  in  as  capital,  the  sum  of  $  ,  and  that  the  said  E  F  paid  in, 
as  capital,  the  sum  of  $  ;  and  that,  on  or  about  the  said  day  of 
,  a.  d.  18  ,  the  said  plaintiff  and  defendant  commenced  the 
said  business,  as  such  partners,  under  the  firm  and  style  of  , 

and  continued  in  the  same  until  the  day  of  ,  A.  D.  18      , 

when,  by  the  mutual  consent  of  the  said  partners,  the  said  firm 
was  dissolved,  and,  by  the  like  consent,  the  said  C  D  and  E  F 
agreed  with  the  said  plaintiff  to  take  the  stock  on  hand  at  the 
valuation  of  ,  and  also  to  proceed  and  collect  the  debts  due 
said  firm,  and  pay  the  debts  due  by  the  same,  and  render,  from 
time  to  time,  to  the  plaintiff,  on  demand,  full  statements  of  the 
debts  due  to  and  owing  by  the  said  firm,  and  the  payments  made 
on  account  thereof;  and,  on  a  final  adjustment,  to  pay  over  to  the 
said  plaintiff  his  full  share  of  the  assets  of  said  firm ;  and  the  said 
plaintiff  saith  that  the  said  defendants  proceeded  to  take  possession 
of  all  the  assets  of  said  firm  of        ,  so  dissolved,  and  to  settle,  col- 


EQUITY   FORMS.  745 


lect,  and  pay,  according  to  the  said  agreement,  as  they  repeatedly 
informed  and  stated  to  the  said  plaintiff;  but  the  said  plaintiff 
avers  that  the  said  defendants  have  collected  the  debts  due  to  the 
said  firm,  and  applied  the  proceeds  to  their  own  use,  instead  of 
paying  the  debts  thereof,  and  distributing  any  balance  coming  to 
the  said  plaintiff;  and  the  said  plaintiff  avers  that  the  said  plaint- 
iff has  repeatedly  requested  the  said  defendants  to  give  him  a  full 
and  accurate  statement  of  the  assets  of  said  firm,  which  came  to 
their  hands,  and  of  their  proceeding  in  the  premises;  but  the  said 
defendants  have  utterly  neglected  and  refused  to  render  any  such 
account,  or  to  pay  over  to  the  said  plaintiff  any  portion  of  said 
assets. 

The  said  plaintiff  therefore  prays  that  an  account  may  be  taken 
touching  said  partnership  affairs,  and  said  defendants  compelled  to 
furnish  a  full  and  complete  statement  of  their  doings  in  the  prem- 
ises, and,  on  the  final  hearing,  be  compelled  to  pay  over  to  the 
plaintiff  any  moneys  found  due  him  from  said  defendants,  on  such 
final  settlement  of  the  affairs  of  said  firm,  and  for  such  other  and 
further  relief  as  equity  and  good  conscience  may  require. 

In  order  to  justify  a  decree  for  an  account  in  a  case  like  this, 
there  must  be  proof  that  the  plaintiff  was  a  partner  of  the  defend- 
ant or  defendants.  Wright,  J.,  in  Salter  v.  Ham  et  al.,  31  N.  Y.  321, 
326,  says :  "  To  entitle  the  plaintiff  to  have  an  account  and  distri- 
bution of  the  property,  stock,  and  money  referred  to  in  his  com- 
plaint, the  relation  of  partnei*s  must  have  existed  between  himself 
and  the  defendant  Ham  during  the  time  therein  stated.  If  he  was 
not  such  partner,  or  a  member  of  the  firm  of  D.  H.  Ham  &  Co.,  he 
had  no  right  to  an  accounting  in  respect  to  the  business  and  prop- 
erty of  Ham,  or  of  such  firm.  The  preliminary  question  then  was, 
whether,  from  December,  1855,  to  January,  1862,  the  plaintiff  and 
Ham  were  partners  inter  se  in  the  business  called  '  Dr.  Ham's  In- 
vigorating Spirit.'  "  In  Auld  v.  Butcher,  2  Kan.  135,  the  court  say  : 
"If  the  defendant,  as  in  this  case,  requested  or  assented  to  the 
taking  of  the  account,  the  accounting  was  ordered  of  course,  and 
reference  made  accordingly.  There  is  nothing  in  the  code  chang- 
ing substantially  this  remedy,  and  it  is  believed  to  be  still  the  cor- 
red  practice  to  dispose  of  all  matters  in  bar  of  an  accounting 
before  the  account  is  stated,  and  that  if  a  defendant  chooses  not  to 
set  up  such  bar,  but  to  take  his  clianee  of  getting  a  report  in  his 
favor,  and  prays  that  the  account  may  be  taken,  he  waives  the  bar, 
and  should  not  be  allowed  to  raise  it  afterward."     The  defense  in 


746  EQUITY    FORMS. 


this  case  was  the  statute  of  limitations.  The  petition  on  its  face 
showed  that  the  claim  was  barred.  The  defendant  answered,  ad- 
mitting the  partnership,  and  claiming  a  large  sum  due  him,  and 
asked  for  an  account.  The  reference  was  had,  the  account  stated, 
and,  turning  out  against  the  defendant,  he  claimed  then  that  the 
whole  case  was  barred.  The  court  held  he  had  waived  that  de- 
fense, and  could  not  then  set  the  bar  up  to  defeat  a  recovery.  It 
may  be  doubtful  whether  this  would  be  good  law  in  Ohio,  where 
the  statute  extinguishes  the  debt  or  claim,  so  that  no  action  can  be 
maintained  on  it. 

In  case  the  firm  has  not  been  dissolved,  the  averment  will  be 
varied  a  little,  merely  alleging  that  the  partnership  has  expired. 

11.  JUDGMENT  CREDITOR  V.    JUDGMENT  DEBTOR  AND  FRAUDULENT 

GRANTEE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F.  de- 
fendants, for  that  that  the  said  A  B  did,  at  the  term  of  this 
court,  A.  D:  18  ,  recover  a  judgment  against  the  said  C  D,  for  the 
sum  of  $  ,  debt,  and  $  ,  costs  of  suit,  which  judgment  still  re- 
mains in  full  force  and  effect  in  law,  unreversed  and  unsatisfied  ; 
that  the  said  A  B  afterward  caused  an  execution  to  be  issued 
thereon  against  the  property  of  the  said  C  D,  and  which  execution, 
for  the  want  of  goods  and  chattels  of  the  'said  C  D,  the  sheriff  of 
the  said  county  levied  on  the  following  real  estate,  to  wit,  (here  de- 
scribe it,)  and  the  said  plaintiff  avers  that  the  said  C  D  is  wholly 
insolvent,  and  has  no  property  liable  to  execution  whereof  the  said 
plaintiff  can  make  the  amount  of  his  said  judgment;  and  the  said 
plaintiff  saith  that  the  said  C  D  did,  on  or  about  the  day  of 
,  a.  d.  18  ,  convey  the  said  premises,  so  as  aforesaid  levied 
upon,  to  the  said  E  F,  without  consideration,  and  with  the  intent 
and  for  the  purpose,  as  the  said  E  F  then  well  knew,  of  delaying, 
hindering,  and  defrauding  the  said  plaintiff  out  of  his  said  claim, 
and  others,  the  creditors  of  the  said  C  D,  out  of  their  just  demands 
and  claims  against  him,  the  said  C  D. 

The  said  plaintiff  therefore  prays  that  the  said  deed  of  convey- 
ance from  the  said  C  D  to  the  said  E  F  may  be  declared  null  and 
void,  and  be  wholly  set  aside,  and  the  said  lands  and  tenements 
be  ordered  and  adjudged  to  be  appraised,  advertised,  and  sold,  and 
the  proceeds  of  said  sale  be  applied  to  the  payment  of  the  said 
judgment  of  the  said  plaintiff,  together  with  the  costs  thereon. 

A  petition  of  this  character  can  not  be  filed  under  the  code  be- 


EQUITY    FORMS.  747 


fore  judgment  and  execution  on  the  legal  claim  any  more  than  it 
could  under  the  old  chancer}-  law  and  practice.  The  right  of  the 
party  is  an  equitable  right,  and  does  not  exist  until  a  failure  to 
make  the  money  on  execution.  What  right,  then,  has  one  to  sue 
a  fraudulent  grantee,  or  the  debtor  of  his  debtor,  until  he  has  ex- 
hausted his  direct  remedy  against  the  debtor  himself?  To  hold 
that  he  can  do  it  in  the  first  instance,  is  to  create  a  right  which 
never  did  exist  in  equity.  The  code  has  not  altered  the  law  ;  the 
right  to  sue  the  fraudulent  grantee,  or  the  debtors  of  the  debtor, 
is  a  right  dependent  on  a  condition  to  be  performed;  and  that  con- 
dition is  that  the  claim  has  been  reduced  to  judgment,  that  an  exe- 
cution has  been  returned  nulla  bona.  Now,  what  right  has  a  court 
to  say  that  these  conditions  may  be  disregarded  ?  Our  former 
practice  act  dispensed  with  an  execution,  but  that  act  is  now  re- 
pealed, and  the  law,  as  administered  in  courts  of  equity,  is  now 
alone  in  force,  without  the  modifications  introduced  by  our  former 
acts,  regulating  the  equitable  jurisdiction  and  practice  of  our  courts 
as  courts  of  chancery. 

Section  458  of  the  code  provides  for  this  whole  matter.  It  is 
there  enacted  that,  when  any  judgment  debtor  has  not  personal  or 
real  property  subject  to  levy  on  execution,  sufficient  to  satisfy  the 
judgment,  any  equitable  interest  which  he  may  have  in  real  estate, 
as  mortgagor,  mortgagee,  or  otherwise,  or  any  interest  he  may 
have  in  any  banking,  turnpike,  bridge,  or  other  joint-stock  com- 
pany, or  any  interest  he  may  have  in  any  money  contracts,  claims, 
or  choses  in  action,  due  or  to  become  due  to  him,  or  in  any  judg- 
ment or  decree,  or  any  money,  goods,  or  effects  which  he  may  have 
in  the  possession  of  any  person,  body  politic,  or  corporate,  shall  be 
subject  to  the  payment  of  such  judgment  by  action,  or  as  in  this 
chapter  prescribed.  The  remedy  provided  in  that  chapter  is  a  sort 
of  Spanish  Inquisition  remedy,  and  a  palpable  violation  of  the 
constitution  ;  since  it  assumes  to  transfer  and  apply  a  man's  prop- 
erty without  the  intervention  of  a  court,  or  pleadings,  or  process. 
It  creates  a  sort  of  Star  Chamber  court,  before  which  a  party  is 
forced  to  appear,  and  be  subjected  to  an  inquisitorial  examination 
without  limits,  without  notice,  before  no  court,  and  ordered  to  apply 
his  property  by  an  individual,  who,  though  called  a  judge,  is  yel 
no  court.  The  whole  proceeding  there  provided  for  is  an  outrage 
on  personal  rights,  and  savors  very  much  of  the  Shylock  doctrine, 
— a  pound  of  flesh,  <>r  my  money. 

This  section,  however,  docs  provide  that  equitable  assets  can  be 
reached    by  action ;  but  it  is  only  after  judgment,  and  when  the 


748  EQUITY    FORMS. 


debtor  has  not  personal  or  real  property  subject  to  levy  on  execu- 
tion. This  section  is  plain  and  explicit,  and  needs  no  comment. 
The  New  York  code  has  been  held  to  authorize  an  action  to  reach 
equities  to  be  joined  with  the  original  action  on  the  legal  claim. 
10  Pr.  225. 

12.    PETITION    TO    DELIVER   UP    NOTES   AND   ACCOUNT   FOR   A   TRUST. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  one  Stephen  W.  Brown  did,  on  or  about  the  4th  day  of 
May,  A.  D.  184C,  assign  and  transfer  to  the  said  C  D,  defendant,  a 
bond  and  mortgage  given  by  one  to  said  Brown  for  83,000, 

the  sole  property  of  the  said  Stephen  W.  Brown,  as  collateral  se- 
curity for  the  payment  of  three  promissory  notes,  of  SI, 000  each, 
two  of  which  notes  were  made  by  the  said  Stephen  W.  Brown 
alone,  and  one  by  the  said  Stephen  W.  Brown  and  one  Bossi- 

ter,  as  partners,  under  the  name  of  Brown  &  Bossiter;  and  that 
the  said  Bossiter  was  bound  to  pay  one-half  of  the  said  note  for 
SI, 000,  executed  by  said  firm  of  Brown  &  Bossiter;  and  the  said 
plaintiff  further  saith  that  the  said  defendant  collected  the  amount 
due  upon  said  note  and  mortgage,  and  applied  the  same  to  the 
payment  of  the  said  three  several  notes,  for  81,000  each  ;  and  that 
the  said  amount  so  received  on  said  bond  and  mortgage  paid  the 
whole  sum  due  on  the  said  three  several  notes  of  $1,000  each,  and 
left  an  overplus  in  the  hands  of  said  defendant  of  $89. 52  ;  and  the 
plaintiff  further  saith,  that,  on  the  30th  day  of  May,  A.  d. 
1846,  the  said  Stephen  "VV.  Brown  assigned  and  transferred  to  the 
said  plaintiff  all  his  estate,  real  and  personal,  and  rights  in  actions, 
and  shortly  thereafter,  and  before  the  collection  of  the  said  sum 
of  money  on  said  bond  and  mortgage,  by  the  said  defendant,  de- 
parted this  life  ;  and  that  there  has  never  been  any  personal  rep- 
resentative appointed  on  the  estate  of  the  said  Stephen  W.  Brown, 
who,  as  the  said  plaintiff  avers,  died  wholly  insolvent ;  and  the 
said  plaintiff  saith  that,  after  the  collection  of  said  sum  of  $3,000, 
and  interest  on  the  said  bond  and  mortgage,  he,  the  said  plaintiff, 
on  the         day  of  ,  a.  d.  18     ,  requested  the  said  defendant 

to  pay  to  the  said  plaintiff  the  said  sum  of  $89.52,  and  to  deliver 
to  him,  the  said  plaintiff,  the  said  three  several  promissory  notes, 
of  $1,000  each,  before  described;  yet  the  said  defendant  did  not, 
nor  would,  pay  the  said  sum  of  $89.52,  and  deliver  the  said  three 
several  promissoiy  notes  aforesaid. 

The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant for  the  said  sum  of  $89.52,  together  with  interest  thereon 


EQUITY   FORMS.  749 


from  the  said         day  of  ,  a.  d.  18     ,  and  also  that  the  de- 

fendant may  be  adjudged  and  ordered  to  deliver  up  to  the  said 
plaintiff  the  said  three  several  promissory  notes,  so  as  aforesaid 
described. 

This  is  substantially  the  petition  in  the  case  of  Cahoon  et  al.  v. 
Bank  of  Utica.  It  is  first  reported  in  7  Pr.  134,  where  the  Su- 
preme Court  held  the  petition  bad  on  demurrer,  on  the  ground  of 
misjoinder,  there  being  here  a  demand  for  money,  and  also  a 
prayer  for  specific  relief  in  equity.  But  in  the  Court  of  Appeals, 
3  Selden,  486,  five  judges  to  two  held  the  complaint  sufficient,  on 
the  ground  that  the  whole  case  was  one  in  equity,  founded  on  a 
trust,  growing  out  of  the  deposit  of  the  bond  and  mortgage  with 
the  defendant,  in  trust,  to  collect  the  same  to  pay  the  three  SI, 000 
notes,  and  then  to  give  up  the  three  notes,  and  pay  any  balance 
left  in  his  hands,  over  and  above  satisfying  the  said  three  notes. 
This  decision  seems  to  settle  that  law  and  equity  can  not  be  com- 
bined in  the  same  petition,  requiring,  as  they  do,  separate  trials — 
one  by  a  jury,  and  the  other  by  the  court. 

13.     SURETY  V.    PRINCIPAL    AND    CREDITOR,    TO    COMPEL    HIM    TO    PAY 

THE    DEBT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F,  de- 
fendants, for  that  the  said  C  D  did,  on  the  day  of  ,  a.  d. 
18  ,  at  (place  of  date,)  as  principal,  and  the  said  plaintiff,  as  his 
surety,  make  their  promissory  note  in  writing  of  that  date,  and 
then  delivered  the  same  to  the  said  E  F,  and  thereby  agreed,  as 
such  principal  and  surety,  to  pay  to  the  said  E  F  the  sum  of  $  > 
in  months  after  the  date  thereof,  and  the  said  plaintiff  saith 
that  the  said  promissory  note  is  now  due  and  payable,  and  has 
been  for  the  space  of  months  last  preceding;  yet  the  said  C  D 
hath  not  paid  the  said  sum  of  money  in  said  note  named,  nor  any 
pari  thereof,  to  the  said  E  F,  whereby  the  said  plaintiff  is  still 
held  liable  thereon  to  the  said  E  F,  for  the  amount  of  the  said 
promissory  note,  with  interest  thereon. 

The  said  plaintiff  therefore  prays  that  an  order  or  judgment 
may  be  rendered  against  the  said  C  D,  requiring  and  compelling 
him  to  pay  to  the  said  E  F  the  said  sum  of  $  ,  together  with 
interest  thereon  from  the  said  day  of  A.  D.  18     . 


750  EQUITY   FORMS. 


This  is  filed  under  section  500  of  the  code.  It  is  substantially 
what  our  courts  had  before  decided  could  he  done  in  equity,  after 
judgment  had  been  obtained.  McConnell  v.  Scott  et  ah,  15  Ohio, 
401  ;  Stump  v.  Rodgers,  1  lb.  533. 

By  section  501,  the  surety  may,  before  the  debt  becomes  due,  sue 
his  principal  to  obtain  indemnity  against  the  debt,  or  liability, 
whenever  any  of  the  grounds  exist  upon  which  an  order  may  be 
made  for  an  arrest  or  for  an  attachment.  The  petition,  in  this 
case,  will  follow  the  above,  so  far  as  the  giving  the  note  or  con- 
tracting the  liability  is  concerned  ;  it  will  then  aver  that  the  said 
principal  has  done  one  of  the  acts  specified  under  the  heads  of  ar- 
rest or  attachment,  in  the  same  form  as  is  stated  in  affidavit,  and 
then  prays  that  the  said  defendant  may  be  adjudged  to  indemnify 
the  said  plaintiff  against  the  said  liabilitj7.  The  remedy  is  not 
here  pointed  out,  nor  is  it  elsewhere  ;  but  it  must  consist  in  re- 
quiring the  party  to  give  an  undertaking,  with  other  surety,  to  the 
plaintiff,  to  pny  the  claim,  or  if  he  can  not  do  that,  then  to  render 
a  judgment  that  he  pay  the  debt  at  once.  The  payee  must,  of 
course,  be  a  party,  so  the  money  can  be  ordered  to  be  paid  to  him. 

14.    TO    STAY    WASTE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff,  being  seized  in  fee  simple  of,  or  other- 
wise well  entitled  to,  the  premises  hereinafter  described,  did,  by  a 
certain  indenture,  bearing  date  ,  a.  d.  18     ,  and  made  be- 

tween the  said  plaintiff  and  the  said  defendant,  demise,  and  lease 
unto  the  said  C  T),  his  heirs  and  assigns,  the  following  real  estate, 
to  wit,  (liere  describe  the  premises  as  in  the  lease,)  to  have  and  to  hold 
the  same  to  him,  the  said  C  D,  his  heirs  and  assigns,  from  the 
day  of  ,  a.  d.  18     ,  then  last  passed,  for  the  term  of 

thence  next  ensuing,  at  the  yearly  rent  of  S  ,  payable,  (Jiere 
state  as  in  lease;)  and  the  said  C  D  did,  in  said  indenture,  covenant 
with  the  said  plaintiff,  his  heirs  and  assigns,  that  he,  the  said  C  D, 
(here  state  the  covenant  shortly,  as  to  keeping  buildings  and  premises 
in  repair,  and  as  to  managing  and  cultivating  the  land;)  and  the 
said  plaintiff  saith  that  the  said  C  D  took  possession  of  the  said 
premises,  under  and  by  virtue  of  the  said  demise,  the  same  being 
then  in  good  repair  and  condition  ;  but  the  said  plaintiff  saith  that 
the  said  premises  have  since  become  ruinous,  and  in  bad  repair, 
and  the  said  lands  are  very  much  deteriorated,  from  the  willful 
mismanagement  and  improper  cultivation  thereof  by  the  said  C  D  ; 
and  that  he,  the  said  C  1),  has  permitted  the  roofs  of  the  buildings 


EQUITY   FORMS.  751 


thereon  to  become  open  and  leaky,  so  that  the  rain  runs  through 
the  same  into  the  rooms  and  building,  whereby  the  timber  is  liable 
to  become  rotten,  and  the  said  building  to  become  ruinous;  and 
the  said  C  D  has  plowed  certain  fields  containing  acres,  laid 

down  to  grass,  contraiy  to  terms  of  his  said  lease,  and  has  other- 
wise committed  great  spoil,  and  waste,  and  destruction  in  and  upon 
the  said  premises;  and  the  said  plaintiff  saith  that  he  hath  sustained 
damages,  by  reason  of  the  premises,  to  the  sum  of  $  ;  and  the 
said  plaintiff  further  says  that  the  said  C  D  has  and  does  threaten 
to  commit  further  and  other  destruction  in  this — that  the  said  de- 
fendant threatens  to,  (here  state  what  he  threatens  to  do,  which  is 
claimed  to  be  icaste.) 

The  said  plaintiff  therefore  prays  judgment  against  the  said  C  D 
for  the  said  sum  of  $  ,  his  damages  for  the  waste  aforesaid;  and 
also  that  the  said  defendant  may  be  perpetually  enjoined  from, 
(here  state  the  act  to  be  enjoined.) 

15.    TO    CANCEL    AN   AGREEMENT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D  and  E  F,  de- 
fendants, for  that  the  said  A  B  did,  on  or  about  the        day  of 

,  a.  D.  18     ,  at  ,  make  his  certain  promissory  note  in 

writing  of  that  date,  and  then  deliver  the  same  to  the  said  C  D,  and 
thereby  promised  to  pay  to  the  said  C  D,  or  order,  the  sum  of 
8         ,  at  the  bank  of  ,  in  the  city  of  ,  in  the  State  of 

,  in  months  after  the  date  thereof,  and  that  the  said 

C  D  then  indorsed  and  delivered  the  said  note  to  the  said  E  F,  and 
the  said  plaintiff  saith  that  the  said  note  was  so  made  and  indorsed 
by  the  said  parties  thereto,  to  enable  the  said  E  F  to  get  the  same 
discounted  at  the  bank  of  ,  in  ,  and  not  elsewhere,  and 

that,  if  the  same  was  so  discounted,  then  the  said  E  F  was  to  apply 
the  proceeds  to  the  payment  of  a  claim  which  he,  the  said  E  F,  then 
held  against  the  said  C  D;  and  the  said  plaintiff  further  saith  that 
it  was  further  agreed,  by  and  between  the  said  plaintiff  and  the 
said  defendants,  that  in  case  said  bank  of  would  not  discount 

the  said  promissory  note,  then  the  said  E  F  was  to  return  the  same 
to  the  said  plaintiff  to  be  canceled;  and  the  said  plaintiff'  further 
saith  that  the  said  E  F  did  present  the  said  promissory  note  to  the 
sai<l  bank  of  ,  and  that  the  said  hank  of  declined  and 

refusod  to  discount  the  same;  and  the  said  plaintiff  saith  that  the 
said  E  P  still  retains  said  note  in  his  possession,  and  has  neglected, 
and  on  demand  refused,  to  deliver  the  same  up  to  the  said  plaintiff, 
but  threatens  and  claims  that  he  will  present  the  same  to  some 


752  EQUITY   FORMS. 


other  person  or  bank  for  discount,  whereby  the  said  plaintiff  would 
be  liable  to  pay  the  same. 

The  said  plaintiff  therefore  prays  that  the  said  defendant  E  F 
may  be  adjudged  to  deliver  up  to  the  said  plaintiff  the  said  promis- 
sory note,  and  meantime  be  enjoined  from  procuring  the  same  to 
be  discounted,  or  from  transferring  the  same,  under  any  pretense 
whatever. 

A  petition  of  this  character  must,  of  course,  depend  upon  the 
facts  of  the  case  and  the  character  of  the  contract  to  be  delivered 
up.  The  above  form  will  serve  as  a  hint  for  the  main  averments 
necessary  to  be  contained  in  the  petition.  It  must  show  that  the 
paper  is  a  nullity  in  equity,  either  by  having  been  paid,  or  by  rea- 
son of  having  been,  as  in  this  case,  executed  for  a  particular  pur- 
pose, which  jiurpose  has  been  defeated,  so  that  the  note,  or  bill,  or 
contract,  ought  not  to  be  used  for  any  purpose  whatever. 

1G.    TO    SET   ASIDE    A    DEED    OBTAINED    BY   FRAUD 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  A  B,  on  or  about  the         day  of  ,  a.  d.  18     , 

was  seized  in  fee  simple  of  the  following  lands  and  tenements,  sit- 
uate in  the  county  of  aforesaid  ;  and  the  said  plaintiff  further 
saith  that  /the  said  C  D,  by  fraud  and  misrepresentation,  induced 
the  said  plaintiff  to  convey  the  said  real  estate  to  him,  the  said  de- 
fendant, his  heirs  and  assigns,  for  the  consideration  of  $  ,  when 
he,  the  said  defendant,  well  knew  said  premises  were  justly  worth 
the  sum  of  $  ;  and  the  said  plaintiff  further  saith  that  the  said 
C  D  bjr  fraud  drew  and  procured  the  said  plaintiff  to  execute  and 
deliver  to  the  said  defendant  a  deed,  conveying  the  said  real  estate 
to  him,  the  said  C  D,  his  heirs  and  assigns,  when  he  well  knew  that 
the  said  plaintiff  intended  and  designed  to  execute  and  deliver  to 
the  said  CDa  deed  demising  to  the  said  C  D  the  said  premises  for 
the  life  of  the  said  C  D  ;  and  the  said  plaintiff  further  saith  that 
the  said  defendant  by  fraud  procured  and  induced  the  said  plaint- 
iff to  execute  and  deliver  to  the  said  defendant,  a  deed  of  the  said 
premises,  conveying  the  same  to  the  said  defendant  in  fee,  by 
fraudulently  representing  to  the  said  plaintiff  that  the  said  deed 
of  conveyance  was  a  mere  lease  of  said  premises  to  the  said  C  D 
for  the  term  of  years;  and  the  said  plaintiff  saith  that,  relying 
on  the  said  representations  of  the  said  defendant,  she  did  execute 
and  deliver  the  same  as  and  for  such  lease,  and  for  no  other  pur- 
pose whatever. 


EQUITY    FORMS.  753 


The  said  plaintiff  therefore  prays  judgment  against  the  said  de- 
fendant, that  the  said  deed  so  obtained  maybe  ordered  to  be  deliv- 
ered up,  and  canceled,  and  held  for  naught. 

This  form  is  drawn  on  the  opinion  of  Morris,  J.,  in  Wooden  v. 
Strew,  10  Pr.  4S.  He  held  that  nothing  could  be  stated  in  the 
pleading  but  the  naked  averments;  that  all  else  was  mere  evi- 
dence, which  should  be  stricken  out  as  irrelevant  and  redundant. 
The  correctness  of  this  decision  may  well  be  doubted.  The  facts 
constituting  a  cause  of  action  in  a  chancery  case,  and  by  the  law 
regulating  chancery  practice,  are  very  differently  stated  from  a 
proceeding  at  law.  In  the  case  of  equity  pleading,  the  facts  show- 
ing the  deed  to  have  been  obtained  by  fraud,  should  be  stated  so 
that  the  court  could  see  that  it  ought  to  be  set  aside.  If  misrepre- 
sentation was  the  mean,  that  should  be  stated,  not  that  it  was  ob- 
tained by  misrepresentation,  but  the  particular  misrepresentation 
should  be  stated.  So,  at  law.  a  plea  that  the  deed  was  obtained  by 
fraud  was  bad,  unless  it  set  forth  wherein  the  fraud  consisted. 

17.    ANOTHER   FORM. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  A  B  was,  on  or  about  the         day  of  ,  A.  d. 

18     ,  seized  in  fee  of  the  following  real  estate,  situate  in  the  county 
of  ,  to  wit,  (fiere  describe  it.)  and  that,  being  so  seized,  the 

said  defendant  applied  to  the  said  plaintiff  to  purchase  the  same, 
and  the  said  plaintiff,  living  at  a  distance  from  the  said  premises, 
and  knowing  but  little  as  to  their  value,  personally  informed  the 
said  defendant  that  he,  the  said  plaintiff,  would  sell  the  same  for  a 
fair  value  in  money,  but  that  he  knew  very  little  as  to  their  pres- 
ent value,  and  the  improvements  going  on  in  their  vicinity,  tending 
to  increase  the  present  value  thereof;  and  the  said  plaintiff  in- 
quired of  the  said  defendant  if  any  improvements  were  being 
made,  or  contemplated  to  be  made,  which  would  tend  to  enhance 
the  value  thereof,  and  also  whether  there  were  on  said  premises 
any  valuable  minerals,  which  added  to  their  value  beyond  what  it 
would  lie  as  mere  farming  land  ;  and  the  said  defendant  then  repre- 
sented that  lie  knew  of  no  such  improvements  being  made,  or  con- 
templated to  be  made,  nor  of  any  minerals  thereon  which  could 
increase  their  value,  and  the  said  plaintiff,  relying  and  confiding 
in  the  truth  of  tie'  said  statements  of  the  said  defendant,  did  then 
agree  to  sell,  and  did  sell,  to  the  said  defendant,  the  said  premises 
vol..  j— IS 


754  EQUITY    FORMS. 


for  the  sum  of  $  ,  which  he,  the  said  defendant,  then  paid  to 
the  said  plaintiff;  and  the  said  plaintiff  then  executed,  in  due  form, 
and  delivered  to  the  said  defendant,  a  deed  of  that  date,  conveying 
the  said  premises  to  the  said  defendant  in  fee  simple ;  and  the  said 
plaintiff  avers  that,  at  the  time  of  the  said  purchase,  the  railroad 
line  of  had  been  located  in  the  immediate  vicinity  of  the  said 

premises,  and  a  depot  thereof  established  within  one  mile  of  the 
said  premises,  and  that  there  were  on  the  said  premises  beds  of 
valuable  coal  and  iron,  and  the  said  premises  were  then  worth,  in 
cash,  the  sum  of  $  ,  instead  of  the  said  sum  of  $  ;  of  all 
which  the  said  defendant  then  well  knew,  when  he  so  made  his 
false  and  fraudulent  representation,  as  aforesaid,  to  induce  said 
plaintiff  to  sell  and  convey  the  said  premises  as  aforesaid ;  and  the 
said  plaintiff  further  saith  that  as  soon  as  he  discovered  the  false- 
hood of  said  representation,  to  wit,  on  the  day  of  ,  a.  d. 
18  ,  he  applied  to  the  said  defendant,  and  tendered  to  him  the 
said  sum  of  8  ,  so  paid  for  said  premises,  and  requested  the  said 
defendant  to  reconvey  the  said  premises  to  the  said  plaintiff;  but 
the  said  defendant  did  not,  nor  would  he,  receive  the  said  sum  of 
$  ,  and  reconvey  said  premises  to  the  said  plaintiff,  but  so  to 
do,  he,  the  said  defendant,  wholly  refused  ;  and  the  said  plaintiff 
now  brings  here  into  court  the  said  sum  of  $  ,  ready  to  be  de- 
livered to  the  said  defendant,  whenever  he  will  accept  the  same, 
and  reconvey  the  said  premises  to  the  said  plaintiff. 

The  said  plaintiff  therefore  prays  a  judgment  against  the  said 
defendant,  that  he,  the  said  defendant,  do  reconvey  to  the  said 
plaintiff  the  said  premises  so  fraudulently  purchased  of  the  said 
plaintiff;  (or,  that  the  said  contract  of  sale  and  the  said  deed  of 
conveyance  may  be  adjudged  to  be  fraudulent  and  void,  and  be 
wholly  vacated,  and  set  aside,  and  held  for  naught,  and  the  said 
defendant  be  ordered  to  release  to  the  said  plaintiff  all  his  title  in 
and  to  the  said  premises.) 

It  would  seem  that  the  petition  should,  as  in  this  form,  state  what 
the  misrepresentation  was,  without  setting  forth  how  it  was  to  be 
proved.  Unless  the  facts  are  stated,  no  case  is  presented  for  relief. 
Fraud  is  a  conclusion  of  law,  not  the  assertion  of  a  fact.  The  fact 
should  be  stated,  and  then  the  legal  conclusion,  whether  that  is 
fraud,  will  be  drawn  by  the  court.  It  is  not  enough,  in  a  declara- 
tion on  a  fraudulent  sale,  to  state  that  he  induced  the  party  by 
fraud  to  make  the  purchase;  the  particular  representation  must  be 
stated,  and  this  representation  must  be  averred  to  be  false,  and  that 


EQUITY   FORMS.  755 


the  part}-  knew  it  so  to  be  when  he  made  it.  So  much  should  be 
required  in  all  cases  founded  upon  fraud,  whether  at  law  or  in 
chancery. 

18.    OX   A   LOST    NOTE. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  defendant,  on  or  about  the         day  of  a.  d. 

18  ,  made  his  certain  promissory  note  in  writing  of  that  date, 
(or,  if  the  date  is  uncertain,  say,  dated  on  or  about  the  day  of 
,  a.  d.  18  .)  and  then  delivered  the  same  to  the  said  plaint- 
iff, and  thereby  promised  to  pay  to  the  said  plaintiff,  or  order,  the 
sum  of  S         ,  in  months  after  the  date  thereof;  which  period 

has  now  elapsed,  and  the  said  plaintiff  further  saith  that,  after  the 
giving  of  the  said  promissory  note,  and  before  it  became  due.  he 
lost  the  same,  and  that,  at  the  time  of  said  loss,  he,  the  said  plaint- 
iff, had  never  indorsed  the  said  promissoiy  note  to  any  person 
whatever;  and  the  said  plaintiff  further  saith  that  he  afterward, 
when  the  said  promissory  note  became  payable,  notified  the  said 
defendant  that  the  same  had  been  so  lost  by  the  said  plaintiff,  and 
then  recpiested  the  said  defendant  to  pay  the  said  sum  of  money 
therein  named,  and  the  said  plaintiff  then  offered  and  tendered  to 
the  said  defendant  a  good  and  sufficient  agreement  in  writing, 
signed  by  the  said  plaintiff,  and  ,  as  his  sureties,  promising 

to  indemnify  the  said  defendant  against  all  liability,  by  reason  of 
said  lost  note;  yet  the  said  defendant  did  not,  nor  would,  pay  the 
said  sum  of  money,  or  any  part  thereof,  to  the  said  plaintiff;  and 
the  said  plaintiff  now  brings  here  into  court  his  said  agreement  of 
indemnity,  and  hereby  offers  the  same  to  the  said  defendant. 

Wherefore  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  $  ,  together  with  interest  thereon 
from  the  said         day  of  ,  a,  d.  18 

In  the  ease  of  Crow  v.  Clay,  25  Eng.  L.  &  Eq.  451,  it  was  held 
thai  a  plaintiff  could  not  recover  at  law  on  a  lost  negotiable  bill  or 
note'.  Ee  must  produce  the  note  on  the  trial,  and  hence  be  the 
holder  of  it.  in  order  to  recover.  His  remedy  in  such  a  case  is  in 
equity.  Byleson  Bills,  302;  6  Ves.  812;  Hansard  v.  Robinson,  7 
Y>.  k  C.  90;  Champion  v.  Terry,  :;  1',.  ,v  B.  295.  Where  there  is  no 
court  exercising  equity  powers,  a  court  of  law  has  required  the  in- 
demnity. Fales  r.  Russell,  16  Pick.  315.  Bui  in  Thayer  &  Mason 
v.  Kin-.  15  Ohio,  242,  it  was  held  that  if  the  note  was  losl  after 

du  •.  a  suit  at  law  could  be  maintained  on  the  note  ;  and  hence  that, 


756  EQUITY   FORMS. 


in  such  a  case,  no  indemnity  was  necessary.  But  the  case  of  Crow 
v.  Clay,  25  Eng.  Law  &  Eq.  451,  maintains  a  directly  contrary  doc- 
trine. The  court  says  that  it  is  a  well-established  fact  that,  in  an 
action  on  a  negotiable  bill,  the  plaintiff  must  be  the  holder  at  the 
time  he  sues  upon  it ;  and  if  he  has  lost  it,  he  can  not  maintain  an 
action  upon  it.  The  plaintiff  can  not  throw  on  the  defendant 
the  consequences  of  his  own  negligence;  because,  if  in  fact  the 
negotiable  instrument  has  been  indorsed,  the  holder  would  not  be 
bound  by  a  judgment  in  a  suit  to  which  he  was  not  a  party. 
Hence  the  payee  is  entitled  to  an  indemnity  in  any  contingency, 
and  the  plaintiff'  should  be  required  to  give  it.  It  is  his  own  fault 
that  the  note  is  not  in  his  possession,  to  be  delivered  up,  as  the 
maker  has  a  right  to  have  it ;  and  hence  ho  should'  bo  required  to 
indemnify  the  maker  against  even  the  possibility  of  a  loss,  even 
the  possibility  of  the  fraud  of  the  plaintiff  himself.  It  is  said  that 
if  the  note  has  been  destroyed,  the  plaintiff  may  recover  on  sec- 
ondary proof  of  its  contents.  Hinsdale  v.  Bank  of  Orange,  6 
Wend.  378.  But  even  in  this  case,  the  defendant  runs  the  risk  of  a 
false  recovery,  while  the  note  may  be  still  outstanding.  Is  he  not 
entitled  to  be  secured  against  even  this  contingency  ?  It  would 
seem  so,  since  it  arises  from  the  negligence  of  the  plaintiff.  Vide 
Bowley  v.  Ball,  3  Cowen,  303 ;  Posey  v.  Decatur  Bank,  12  Ala.  802  ; 
Morgan  v.  Beintzel,  7  Cranch,  273;  Aborn  v.  Bosworth,  1  R.  I. 
401 ;  Swift  v.  Stevens,  8  Conn.  431 ;  Eogcrs  v.  Miller,  4  Scam.  334. 

19.    PETITION   FOR   SETTLEMENT    OF    MUTUAL    ACCOUNTS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant, 
for  that  the  said  plaintiff  and  defendant  have  had  mutual  dealings, 
running  through  years,  and  that,  as  the  result  of  said  dealings, 
the  said  plaintiff  and  defendant  have  kept  books  of  account  touch- 
ing and  evidencing  such  dealings,  which  account,  and  the  items  of 
it,  extend  to  more  than  in  number;  and  the  said  plaintiff  fur- 
ther saith  that,  on  the  day  of  ,  a.  d.  18  ,  he  applied  to 
the  said  defendant  to  produce  his  accounts  of  said  dealings,  and 
come  to  a  settlement  and  adjustment  of  the  same,  the  said  plaintiff 
then  offering  to  produce  his  books  of  account,  touching  said  mu- 
tual dealings,  and  there  offered  to  look  over  and  compare  said 
books,  and  settle  and  adjust  said  accounts  between  the  said  plaint- 
iff and  the  said  defendant;  but  the  said  plaintiff  avers  that  the 
said  defendant  then  refused  to  produce  his  said  books  of  account, 
and  to  settle  and  adjust  the  said  mutual  accounts  between  the  said 
parties,  and  hitherto  hath  wholly  refused  to  come  to  an  account 


EQUITY    FORMS.  757 


with  the  said  plaintiff  touching  the  said  mutual  dealings  between 
the  said  parties. 

The  said  plaintiff  therefore  prays  that  the  said  defendant  may 
be  ordered  and  adjudged  to  come  to  an  account  touching  said  mat- 
ter, and  that,  in  case  a  balance  should  be  found  in  favor  of  the 
said  plaintiff,  a  judgment  maybe  rendered  therefor  against  the  said 
defendant. 

Chancery  has  jurisdiction  in  case  of  mutual  accounts.  Johnson 
v .  Wallace.  7  Ohio  (pt.  2),  62  ;  Taylor  v.  Miami  Exporting  Co.  et  al., 
5  Ohio,  1G2.  Under  the  code,  the  petition  need  not — nay,  should 
not,  set  out  the  accounts  as  claimed  by  the  plaintiff.  The  fact-  of 
mutual  accounts  gives  the  court  jurisdiction  to  decree  that  the  par- 
ties account  before  the  master.  In  taking  accounts,  the  plaintiff 
should  first  present  his  account  to  the  master.  The  defendant 
should  then  present  his  ;  and  the  master  should  then  compare  the 
two  ;  see  where  they  agree,  and  where  they  disagree.  When  they 
agree,  no  further  evidence  need  be  taken  ;  when  they  disagree,  or 
when  either  party  objects  to  items  in  the  accounts  of  the  other,  these 
items  must  be  sustained  by  proof  taken  before  the  master;  and,  on 
these  admissions  and  proofs,  the  master  should  state  the  accounts 
as  he  funis  the  truth  to  be,  and  report  his  finding  to  the  court. 
Either  party  may  then  except  to  the  report,  or  any  items  contained 
in  it,  and  these  exceptions  will  be  passed  upon  hj  the  court,  and 
sustained  or  overruled  as  the  evidence,  in  the  opinion  of  the  court, 
sixths  to  require. 

The  decision  in  such  a  case  is  simpl}T  that  the  parties  do  account 
with  each  other  touching  their  said  dealings,  and  that  the  case  be 
referred  to  tin'  master  for  thai  purpose. 

Each  party  should  be  requh-ed  to  verify,  by  his  oath,  all  state- 
ments presented  by  him  to  the  master.  The  master  may  also  re- 
quire  the  parties  to  produce  their  books  of  account,  but  he  has  no 
right  to  examine  any  other  account  than  the  one  in  dispute.  The 
owner  oi  the  hook-  has  a  right  to  fasten  up  the  balance  of  the  hook, 
though  he  mn-i  make  oath  that  the  part  thus  sealed  up  docs  not 
contain  any  item  relating  to  the  account  in  controversy. 

Where  an  account  has  been  Mated  in  writing  between  the  parties, 

and  the  balance  struck.  DO  action  lor  an  account  will  lie  1  Story's 
Eq.  197,  — .  523;  1  Atk.  1  ;  2  Bro.  Ch.  old:  2  Atk.  399;  ::  loo. 
<  *h.  266.  I  >  ■  1 1  it'  there  has  been  any  mistake,  or  omission,  or  fraud, 
or  undue  advantage,  by  which  the  account  stated  is  vitiated,  and 
the  balance  incorrect  ly  fixed,  the  account  may  tie  opened  in  equity; 


758  EQUITY    FORMS. 


but  the  petition  must  show  the  account,  and  point  out  wherein  the 
errors  consist.  The  petition  must,  as  it  is  called,  surcharge  and 
falsify,  that  is,  it  must  point  out  what  is  omitted  and  what  is 
wrongfully  charged.  1  Story's  Eq.  498  ;  2  Ves.  Jr.  565  ;  11  Wheat. 
237  ;  1  Johns.  Ch.  550. 

20.    PETITION   TO    CORRECT   A   STATED   ACCOUNT. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  the  said  plaintiff  and  defendant,  having  before  that  time  bad 
sundry  mutual  dealings  between  them,  did,  on  the         day  of  , 

a.  t>.  18  ,  come  to  a  mutual  accounting  between  them  touching 
said  mutual  dealings,  and  on  said  accounting  a  statement  of  the 
said  account  was  made  in  writing,  whereby  a  balance  of  $  was 
found  to  be  due  from  the  said  plaintiff  to  the  said  defendant,  on  the 
final  adjustment  of  the  said  accounts;  but  the  said  plaintiff  avers 
that,  since  the  said  adjustment  and  settlement  of  the  said  accounts, 
he  has  discovered  sundry  errors  and  false  charges  therein,  of  which 
he  was  wholly  ignorant  at  the  time  he  so  settled  said  accounts,  and 
struck  the  said  final  balance;  and  the  said  plaintiff  further  saith 
that,  in  the  statement  of  said  account,  so  as  aforesaid  made  and 
settled,  he  is  charged,  (here  state  the  items  wrongfully  charged,  and 
point  out  why  so  wrongfully  charged ;)  and  the  said  plaintiff  further 
saith  that  the  following  items,  which  ought  to  have  been  entered 
to  his  credit  in  said  account,  were  wholly  omitted  therefrom,  by 
mistake  and  oversight,  to  wit,  (here  set  forth  the  items,  with  date, 
amount,  etc.;)  and  the  said  plaintiff  further  saith  that  the  said  ac- 
count ought  to  be  so  corrected,  and  the  balance  thereon  ought  to  be 
$  in  favor  of  the  said  plaintiff,  instead  of  being  $  in  favor 

of  the  said  defendant,  as  in  the  said  stated  account;  and  the  said 
plaintiff  further  saith  that,  as  soon  as  he  discovered  the  said  mis- 
takes and  errors  in  said  stated  account,  he,  on  the  day  of  , 
A.  d.  18  ,  called  on  the  said  defendant,  and  pointed  the  same  out 
to  him,  and  then  requested  the  said  defendant  to  correct  the  same, 
and  to  restate  the  said  account,  with  the  mistakes  and  errors  afore- 
said corrected;  but  the  said  defendant  then,  and  ever  since,  has 
refused,  and  still  does  refuse  to  restate  the  said  account  and  correct 
the  said  errors  and  mistakes  so  made  against  the  said  plaintiff; 
and  the  said  plaintiff  avers  that,  if  the  said  errors  were  corrected, 
the  said  defendant  would  owe  the  said  plaintiff  the  sum  of  $  , 
at  the  date  of  the  said  account  so  stated. 

The  said  plaintiff  therefore  prays  that  he  may  be  let  in  to  prove 
the  said  errors  and  mistakes  in  the  statins:  of  the  said  account, 


EQUITY   FORMS.  759 


and  that  judgment  may  be  rendered  against  the  said  defendant 
for  the  said  balance  of  $  ,  due  him  on  said  corrected  account, 

with  interest  thereon  from  the         day  of  ,  a.  d.  18     . 

The  issue  in  such  a  case  will,  of  course,  he  on  the  errors  pointed 
out.  The  defendant  must  deny  the  errors  so  pointed  out,  if  he 
can,  and  then  evidence  will  be  heard  in  reference  to  these  items, 
and  no  others;  and  the  account  will  be  corrected  as  the  proof 
shall  show  the  truth  of  the  averments.  The  party  averring  the 
error  must  prove  it;  as  the  account  is  prima  facie  true  until  proved 
to  be  erroneous. 

Where  one  lias  been  induced  to  state  an  account  on  fraudulent 
misrepresentations,  the  entire  account  may  be  set  aside  and  the 
parties  required  to  account  anew.  In  such  case,  the  petition  will 
be  framed  like  one  to  set  aside  a  deed,  or  note  obtained  by  fraud. 
The  account  is  a  thing,  like  a  note  or  other  contract,  to  be  dealt 
with  and  set  aside,  in  case  the  fraud  is  established. 

21.     PETITION     TO     ADJUST     LIENS     AND     PROCURE    A    SALE     OP    REAL 

ESTATE. 

The  said  A  B,  plaintiff,  now  comes,  and  complains  of  the  said 
C  D,  E  F,  G  II.  and  L  M,  defendants,  for  that  the  said  plaintiff 
did,  on  the         day  of  ,  a.  d.  18     ,  in  the  Court  of  Common 

Pleas,  in  and  for  the  county  of  ,  at  the  term  thereof, 

recover  a  judgment  against  the  said  C  D,  for  the  sum  of  $  and 
cents,  with  %  .  costs  of  suit ;  which  said  judgment  remains 
in  full  force  in  law,  and  wholly  unpaid;  and  the  said  plaintiff 
further  saith  that  the  said  C  D  has  no  goods  and  chattels,  lands 
and  tenements,  liable  to  execution,  out  of  which  said  judgment 
can  be  satisfied;  and  the  said  plaintiff  further  saith  that  the  said 
C  D  is  seized  of  an  equity  of  redemption  in  the  following  real  es- 
tate situate  in  said  county  of  .  to  wit,  {here  give  a  description 
of  the  pr  Mid  that  the  said  E  F,  at  the  date  of  the  said 
judgiiH  nt.  claimed  to  hold  a  mortgage  on  said  premises,  to  secure 
a  sum  of  money  due  him  from  the  said  C  D  ;  and  the  said  plaintiff 
further  saith  that  the  said  (J  11  and  L  M  claim  to  hold  some  lien 
lid  premises,  to  secure  some  sum  or  sums  of  money  due  to 
them'  respectively  from  the  said  ('  1). 

The  said  plaintiff  therefore  prays  that  the  said  1*1  1<\  <i  H,  and 
!>  M  may  el  forth  their  respective  claims  and  liens  in  and  to  the 
said  |  .  that  the  court,  will  adjust  the  priorities  of  the  same 

with  thai  of  the  said  plaintiff,  and  among  the  said  defendants ;  and 


760  EQUITY    FORMS. 

that  the  said  real  estate  may  be  decreed  to  be  sold,  and  the  pro- 
ceeds thereof  applied  on  said  claims  according  to  the  respective 
priorities  of  the  liens  thereof,  as  the  same  shall  be  settled  by  this 
court. 

A  case  of  this  character  scarcely  conies  within  the  definitions  of 
the  code,  as  to  a  petition  and  answer.  The  object  of  the  suit  is 
not  a  judgment,  in  the  true  meaning  of  that  term;  but  to  procure 
an  adjustment  of  the  order  of  liens  to  the  real  estate,  ami  a  sale 
of  the  same,  and  an  application  of  the  proceeds  on  the  various 
claims,  according  to  their  respective  priorities.  The  answers  in 
this  case  do  not,  and  can  not  come  within  the  definition  contained 
in  the  code  ;  the  matters  contained  in  them  constitute  neither  a  de- 
fense nor  counter-claim  nor  set-off:  its  ofiice  is  simply  to  bring  facts 
upon  the  record,  showing  the  party's  claim,  so  that  the  court  may 
be  able  to  adjust  their  respective  priorities.  These  facts  are  no  de- 
fense to  the  plaintiffs  claim,  nor  do  they  constitute  a  counter-claim 
or  set-off;  and  yet  they  must  be  admitted,  in  order  to  enable  the 
court  to  pass  upon  the  respective  rights  of  the  parties,  and  admin- 
ister justice.  The  truth  is  clear,  that  the  code  can  not  be  made  to 
meet  the  necessities  of  the  various  cases  which  must  .arise  out  of 
the  law  regulating  equitable  rights,  unless  we  disregard  its  letter 
and  go  behind  its  language  ;  so  as  to  expound  its  definitions  differ- 
ent I  v.  as  they  are  to  be  applied  to  a  case  at  law  or  in  equity.  In 
this  way  we  may  make  it  answer  the  purposes  of  justice  and  its  ad- 
ministration, and  we  can  do  it  in  no  other  way. 

22.  PETITION    TO   SET   ASIDE  A    DECREE    RENDERED  WHILE    PLAINTIFFS 

WERE    MINORS. 

The  said  A  B  and   C  D  complain  of  said  ,  for  that  one 

John  Mulford  died,  on  or  about  the  day  of  ,  A.  D.  18  ,  in  said 
county  of  ,  intestate,  leaving  as  his  children  and  heirs  at  law, 

S  J  L,  intermarried  with  said  J  E  L;  Mary  Ann  Morrison,  inter- 
married with  said  EM;J  M,  J  M,  and  D  M,  and  as  his  widow 
Mary  M;  that  said  Sarah  Jane  was  born  in  March,  a.  d.  1832; 
Mary  Ann  in  April,  a.  d.  1835;  David  in  1812;  Jacob,  A.  d.  1815; 
and  Job  in  December,  a.  d.  1817 ;  that  Sarah  Jane  was  married  in 
September,  A.  d.  1860,  and  Mary  Ann  in  October,  A.  D.  1861 ;  and  the 
plaintiffs  further  say  that  the  said  John  Mulford  at  his  death  was 
seized  in  fee  of  the  following  real  estate,  situate  in  said  county  of 
,  (here  describe  the  real  estate.)  and  that,  on  or  about  the 


EQUITY    FORMS.  761 


day  of  ,  a.  d.  18     ,  the  said  David,  Jacob,  and  Job  Mulford 

combined  and  confederated  together  to  cheat  and  defraud  the  said 
plaintiffs,  S  J  and  M  A,  out  of  their  just  shares  of  said  real  estate, 
and  that  for  the  purpose  of  carrying  out  said  fraud,  J  31  filed  a  bill 
in  chancery  in  the  Court  of  Common  Pleas,  within  and  for  said 
county  of  ,  against  the  other  children  and  heirs  at  law  of 

said  J  31,  to  wit,  ,  and  the  said  31  31,  the  widow  of  said  J 

31,  deceased,  in  which  he,  said  J  31,  falsely  and  fraudulently  repre- 
sented that  in  consideration  that  said  Jacob  and  Job  31  had  each 
labored  for  their  said  father  several  years  after  they  arrived  at 
their  majority,  lie,  said  J  31,  deceased,  agreed  with  them  to  divide 
between  them  the  first  three  described  tracts  of  land,  amounting 
in  all  to  two  hundred  and  sixteen  acres  or  thereabouts,  independ- 
ent of  the  interest  of  the  said  Jacob  31  and  Job  31  in  the  said  home 
farm,  and  convey  the  same  in  fee  simple  to  the  said  J  and  J  31 ; 
and  that  the  said  Jacob  31  in  said  bill  did  further  falsely  and  fraud- 
ulently represent  that  for  the  like  consideration,  the  said  J  31,  de- 
ceased, had  agreed  with  said  I)  31  to  convey  to  him  in  fee  the  said 
tract  of  seventy-five  acres;  and  that  said  J  31  departed  this  life 
without  having  conveyed  to  said  Jacob  31  and  Job  31  and  David 
31,  respectively,  in  fee  or  otherwise,  the  said  several  tracts  of  land 
so  by  him  agreed  to  be  conveyed  as  aforesaid;  and  that  at  his 
death  the  said  John  M,  deceased,  was  still  the  owner  in  fee  of  said 
home  farm  above  described ;  and  that  the  said  Jacob  31,  in  his  said 
bill  in  chancery,  prawd  that  the  dower  of  the  said  31  31  might  be 
assigned  to  her  in  said  home  farm,  and  partition  of  the  same  sub- 
ject to  said  dower  estate  might  be  made  between  the  said  Jacob 
31.  Job  31,  David  31,  Sarah  J,  and  Mary  Ann  31,  in  equal  propor- 
tions, and  that  one-half  of  said  216-acre  tract  might  be  decreed  to 
said  Jacob  M. 

And  the  said  plaintiffs  further  say  that  to  the  said  bill  in  chan- 
cery the  said  David  M  and  Job  M  answered,  and  falsely  and  fraud- 
ulently admitted  thai  the  statements  and  averments  in  said  hill 
were  true,  and  they,  the  said  1)  M  and  Job  31,  asked  that  the  n 
prayed  for  tnighl  be  granted,  and  thai  the  land  above  described,  so 
sold  to  them,  tnighl  he  decreed  to  them,  and  that  partition  might 
be  made  of  the  said  home-farm  as  prayed  for  in  said  petition. 

The  >aid  plain) ill's  further  show  i hat  such  proceedings  were  had 
in  said  ease  thai  afterward,  to  wit,  at  the  term  of  said  Court 

of  Common  Pleas,  a.  d.  Is  .  a  decree  was  entered  adjudging  and 
quieting  the  title  of  Jacob  M  and  Job  M  to  .aid  216-acre  trad  and 
the  title  to  the  75 -acre  tracl   to  the  said  David  M,  and  assigning 


7G2  EQUITY   FORMS. 


dower  to  said  widow,  Mary  M,  in  said  home  farm,  and  making 
partition  thereof  subject  to  said  dower  equally  among  said  plaint- 
iff and  the  other  defendants,  and  forever  barring  the  said  plaint- 
iffs in  and  to  the  said  216-acre  and  75-acre  tracts,  and  that  said 
dower  was  assigned  and  partition  made  and  confirmed  at  the 
term  of  said  court,  a.  d.  18     . 

And  said  plaintiffs  further  show  that  they  were  minors  at  the 
time  of  the  filing  of  said  bill  and  rendering  said  decree;  that  no 
service  was  ever  made  on  them  in  said  suit,  nor  were  they  or 
either  of  them  duly  notified  of  the  pendency  of  said  bill  in  chan- 
cery, nor  did  they  or  either  of  them  appear  to  said  bill;  and  that 
as  to  them  said  proceedings  and  decree  are  null  and  void  ;  and  that 
said  decree  was  based  on  testimony  taken  by  deposition,  of  the 
taking  of  which  these  plaintiffs  had  no  notice. 

The  said  plaintiffs  further  aver  that  under  the  inducement  and 
false  representations  of  said  David  M,  Jacob  M,  and  Job  M,  and 
without  any  consideration  whatever,  and  in  the  utter  ignorance  of 
said  fraud  and  of  their  respective  rights  in  said  premises,  they  did. 
after  coming  of  age,  respectively  quitclaim  to  each  of  said  parties, 
D  M,  J  M,  and  Job  M,  all  their  interests  in  the  lands  so  set  off  in 
partition  to  the  said  D  M,  J  M,  and  Job  M,  and  the  said  D  M,  J  M, 
and  Job  M,  also  released  to  plaintiffs  respectively  all  their  inter- 
ests in  the  premises  set  off  to  said  plaintiffs;  and  the  plaintiffs  say 
that  they  knew  nothing  of  said  suit,  were  inexperienced  in  busi- 
ness, and  lived  with  their  said  brothers  and  relied  on  them  to  pro- 
tect them  in  their  rights. 

The  said  plaintiffs  further  say  that  said  Sarah  J,  was  married 
to  said  on  or  about  the         day  of  ,  a.  d.  18     ,  and  the 

said  Mary  Ann  to  the  said  on  or  about  the         day  of  , 

a.  D.  18  ,  and  that  at  the  time  of  said  marriages  the  said  plaintiffs 
were  each  entirely  ignorant  of  the  wrong  and  injustice  so  done  to 
them  b}~  their  said  brothers,  and  that  since  said  marriages,  to  wit, 
on  or  about  the         clay  of  ,  a.  d.  18,     the  said  fraudulent 

proceedings  and  decree  came  to  their  knowledge,  and  for  the  first 
time  they  learned  that  they  were  each  entitled  to  one-fifth  of  all 
of  said  real  estate,  of  which  their  said  father,  J  M,  died  seized  as 
is  aforesaid  set  forth  and  stated  ;  and  the  said  plaintiffs  aver  that 
their  said  lather  never  made  any  such  agreement  with  each  of 
said  defendants,  to  wit,  said  D  M,  J  M,  and  Job  M,  as  was  averred 
in  said  above-recited  petition;  but,  on  the  contraiy,  said  plaintiffs 
aver  that,  if  any  such  agreement  was  made,  it  was  designed  by 
their  said  father,  and  was  received  by  said  D  M,  J  M,  and  Job  M 


EQUITY   FORMS. 


as  an  advancement  to  them  respectively  made  by  their  said  father, 
and  should  have  been  in  said  proceedings  and  decree  so  treated, 
and  said  plaintiffs  have  had  on  partition  out  of  said  home  farm  a 
value  in  land  amounting  to  one-fifth  of  all  said  lands  of  which 
their  said  father.  J  M,  died  possessed. 

The  said  plaintiffs  pray  that  said  decree  in  partition,  and  said  deeds 
of  release  and  quitclaim  so  made  by  said  plaintiffs,  may  be  set 
aside  and  vacated,  and  that  said  plaintiffs  may,  out  of  said  home 
farm,  have  set  off  to  each  of  them  what  would  be  equal  to  one- 
fifth  part  of  the  lands  of  which  their  said  father,  J  M,  died  seized; 
and  that  an  account  may  be  taken  of  the  rents,  issues,  and  profits  of 
the  said  land  which  ought  to  have  been  assigned  to  them,  and  said 
D  M,  J  M,  and  Job  M  may  be  decreed  each  their  respective  por- 
tion thereof;  and  for  such  other  and  further  relief,  as  the  nature  of 
the  case  and  equity  may  require, 

THOS.  J,  Attorney  for  Plaintiff. 

23.     PETITION     TO     SET    ASIDE     A    DECREE     AGAINST     A    MINOR    AFTER 

HE    IS   OF    AGE. 

The  said  plaintiff  S  Y  E,  complains  of  the  said  S  Y  Y,  A  D, 
J  W,  Y  Y  E,  M  M  F,  and  E  F,  her  husband ;  L  J  E.  J  II  R,  E  L ; 
A  1!,  a  minor  of  the  age  of  seventeen  years,  and  W  8  E,  a  minor 
of  the  age  of  fifteen  years;  E  W  E.  a  minor  of  the  age  of  fourteen 
years  ;  .)  A  E.  a  minor  of  the  age  of  twelve  years  ;  E  L  A  E,  a  minor 
aged  nine  years;  and  E  E,  a  minor  aged  seven  years,  lor  that  S  E, 
heretofon  d,  by  his  last  will,  duly  executed  and  admitted  to 

probate  in  the  Probate  Court  within  and  for  said  county  of  , 

the  said  county  being  the  county  of  his  residence,  made  the  follow- 
ing devise  to  the  said  plaintiff  and  his  brother  Z  T  E,  to  wit:  ••  I 
give  and  bequeath  to  my  grandsons,  Z  T  E  and  S  Y  E,  one  hun- 
dred acre  lot  number  four  hundred  and  twenty-three,  in  section 
twenty-tour,  township  four,  range  fourteen,  provided  my  said 
grandsons  Z  T  11  and  S  V  R,  in  consideration  of  the  above  devise 
to  them  made.  Bhall  pay  to  the  other  children  of  their  lather.  W  R, 
as  may  be,  the  sum  of  twenty-five  dollars  to  each,  to  be  paid  as 
follows:  When  the  said  Z  T  \l  shall  become  of  age,  or  within  six 
months  after  my  death,  ;is  the  case  may  he.  then  to  pay  such  as 
may  be  Oi  age,  and  thereafter  as  they,  the  said  children,  shall  ba- 
conc  of  age.      The   -aid  Z   T   R   and    S  V   II    are    to  pay  each  equal 

iii  payment  of  said  other  children  of  -aid  W  !>'." 
The  plaintiff  further  saith  that  the  said  S  Y  E  departed  this  life 
on  the  l  iih  of  September,  a.  i>.  1866,  while  yet  a  minor  of  the  age 


764  EQUITY   FORMS. 


of  eighteeen  years  or  thereabout,  leaving  as  his  heirs  at  law  the 
said  plaintiff  and  the  said  defendants,  V  Y  E,  M  M  F,  L  J  E, 
W  T  E  E  M  E,  J  A  E,  E  T  A  E,  and  E  E,  children  of  said  W  E. 
The  said  plaintiff  further  saith  that  the  said  defendant,  S  V  V, 
on  the         day  of  ,  a.  d.  18     ,  while  this  plaintiff  and  said 

Z  T  E,  then  living,  were  yet  minors,  did  file  his  petition  in  the  Court 
of  Common  Pleas  within  and  for  said  county  of  ,  to  wit,  in  this 
court,  against  TV  E,  L  V,  and  L  D  V,  her  husband,  heirs  at  law 
of  said  S  E,  deceased,  and  this  plaintiff  and  said  Z  T  E,  then  in 
full  life,  and  the  following  defendants  in  this  action,  to  wit,  V  V  E, 
M  M  F,  L  J  E,  W  T  E,  E  M  E,  and  J  A  E,  setting  forth  that 
the  said  S  E,  in  his  lifetime,  and  the  said  S  V  Z,  about  the  year 
a.  n.  1854,  entered  into  a  parol  agreement,  whereby  in  consideration 
that  the  said  S  V  Z  would  not  remove  to  the  West,  and  pay  twenty- 
five  dollars  per  year  to  said  S  E  during  his  life  as  he  wished  it, 
would  pay  the  taxes  on  the  land  therein  set  forth,  and  pay  the  two 
sisters  of  said  S  V  Z  six  hundred  dollars  or  thereabout,  as  said 
S  E  should  by  his  will  bequeath  to  them,  said  S  E  gave  him  the 
possession  of  the  lands  therein  set  forth,  and  said  S  E  was  to  make 
him,  said  S  V  Z,  such  title  thereto  by  will  or  otherwise  that  he, 
said  S  V  Z,  would  hold  said  lands  in  fee  simple  upon  the  death  of 
said  S  E;  and  further  setting  forth  that  he,  said  S  V  V,  took  pos- 
session and  still  holds  possession  of  said  premises,  to  wit,  (here  de- 
scribe  the  land.)  and  had  on  his  part  performed  all  considerations 
on  his  part  to  be  performed,  except  paying  said  sum  of  six  hun- 
dred dollars  to  his  two  sisters,  said  S  E  having  failed  in  his  said 
last  will  and  testament  to  bequeath  said  sum  of  six  hundred  dollars 
to  the  sisters  of  said  S  V  Y;  and  further  setting  forth  in  said  peti- 
tion the  death  of  said  S  E,  the  devise  of  said  S  E  in  his  said  will 
made  to  this  plaintiff,  and  the  said  Z  T  E,  now  deceased,  of  the 
lands  hereinbefore  described,  the  same  being  a  portion  of  the  lands 
a  conveyance  of  which  was  so  demanded  in  said  petition  ;  and  the 
said  plaintiff  further  saith  that  one  L  P,  Esq.,  was  appointed 
guardian  to  the  said  action  of  the  said  plaintiff  and  said  Z  T  E, 
then  in  full  life,  as  minor  defendants,  and  filed  an  answer  simply 
denying  the  facts  and  averments  contained  in  said  petition,  and 
such  proceedings  were  afterward  had  in  said  action,  that  at  the 
term  of  the  court,  a.  d.  18  ,  and  while  this  plaintiff  and 
said  Z  T  E  were  minors,  this  court  decreed  the  specific  performance 
of  said  pretended  agreement,  and  decreed  this  plaintiff  and  said 
Z  T  E  should  release  their  title  derived  to  them  under  said  will  to 
the  said  S  V  V  in  fee  simple. 


EQUITY   FORMS.  TOO 


And  the  plaintiff  further  avers  that  he  became  of  age  on  the 
ISth  day  of  June.  A.  d.  1871,  and  he  now  comes  and  denies  that 
the  said  S  E  ever  made  any  such  agreement  with  the  said  S  V  V 
as  the  said  S  Y  V  did  in  said  petition  set  forth  and  aver. 

And  the  said  plaintiff  further  saith  that  the  guardian  aforesaid 
failed  to  present  all  the  defense  there  was  to  said  action,  he  having 
tiled  a  simple  denial,  whereas  said  guardian  should  have  set  up 
against  said  petition  that  if  said  imperfect  agreement  was  ever 
made,  there  had  taken  place  such  a  change  of  circumstances,  that 
rendered  it  inequitable  for  the  court  to  execute  said  pretended  and 
imperfect  agreement;  that  the  said  testator,  S  E,  must  not  so  have 
regarded  said  understanding  between  himself  and  said  S  V  V  ;  the 
said  testator,  in  his  said  last  will  and  testament,  devised  to  the 
said  S  V  V  a  part  of  the  lands  so  demanded  in  the  petition  of  said 
S  V  Y,  to  wit,  all  that  part  of  the  land  known  and  described  as 
commons  A  in  section  No.  18,  T.  4,  R.  14,  in  the  said  county  of  , 
which  lies  north  of  a  line  running  east  from  the  southeast  corner 
of  100-aere  lot,  No.  423,  sec.  24,  T.  4,  E.  14,  except  about  eight 
acres  sold  by  testator  to  L  D  V,  the  same  containing  about  sixty- 
five  acres,  and  being  land  more  than  sufficient  to  compensate  said 
S  V  V  for  all  consideration  he  had  in  any  way  paid,  and  for  all 
expenses  he  had  incurred  on  said  lands,  besides  that  the  said 
S  Y  Y  had  the  use  and  occupation  of  the  lands  so  demanded  in  his 
said  petition  during  -the  life  of  said  testator,  from  the  time  said 
testator  let  him  into  possession  thereof,  which  use  and  occupation 
was  reasonably  worth  more  than  all  improvements  thereon  by  the 
saiii  >S  Y  Y  ;  and  the  said  testator  having  failed  in  his  will  to 
direct  how  and  to  whom  said  sum  of  SGOO  should  be  paid,  and 
having  omitted  all  mention  of  the  two  sisters  of  said  S  Y  Y  in  his 
will  in  connection  with  said  8000,  it  had  become  impossible  for 
said  court  to  carry  said  pretended  agreement  into  execution  with- 
out injustice  to  this  plaintiff  and  his  said  brother,  and  to  the 
sisters  of  S  V  V ;  yet  the  stud  court  proceeded  in  disregard  of 
these  considerations,  which  were  probably  never  brought  to  its 
attention,  to  decree  an  execution  of  said  pretended  agreement,  and 
compelled  the  plaintiff  and  his  said  brother  to  release  the  said 
title  so  in  them  nested  by  said  will,  and  that  without  requiring  the 
said  S  V  V  to  pay  the  said  sum  of  $600,  which  said  8  V  Y  admits 
he  was  to  pay  to  either  this  plaintiff  and  his  said  brother,  or  to 
any  other  person  whatever,  whereas  this  plaintiff  avers  that,  if 
said  pretended  agreement  was  to  be  executed  in  equity,  the  said 
sum    of  $600    ought    to   have    been    decreed    to    be    paid    to    this 


76G  EQUITY   FORMS. 


plaintiff  and  his  said  brother,  the  said  testator  having  devised  to 
them  all  his  interest  therein  ;  and  said  plaintiff  further  avers  that 
said  pretended  agreement,  as  set  out  in  the  petition  of  said  S  V  V, 
is  imperfect  and  incomplete  in  this,  that  the  terms  as  to  the  dispo- 
sition <>l'  said  sum  of  8000  were  incomplete,  and  left  unfixed  and 
not  settled,  and  to  depend  on  the  will  of  the  said  S  E,  and  hence, 
that  part  of  said  pretended  agreement  never  was  any  binding 
agreement  on  said  S  E,  and  that  the  testator  must  and  did  so  un- 
derstand said  pretended  agreement  as  not  binding  on  him,  as  he 
devised  said  sixty-five  acres  to  said  S  V  V,  and  a  portion  of  the 
land  demanded  by  said  S  V  V  in  his  said  petition,  to  his  son  W  E, 
and  the  balance  to  his  grandsons,  the  plaintiff  and  his  said  brother, 
Z  T  E,  and  thus  made  among  his  children  and  grandchildren  what 
he  deemed  at  that  time  an  equitable  and  reasonable  disposal  of 
his  estate ;  which  claim  of  said  8  V  V,  and  decree  in  his  favor, 
wholly  disarranged  the  disposal  of  said  testator  of  his  estate,  and 
thereby  worked  great  injustice  to  those  he,  said  testator,  wished  to 
benefit,  and  wholly  defeated  his  last  solemn  intention  as  to  the 
distribution  of  his  estate  among  his  children  and  grandchildren, 
the  said  S  V  Y  being  also  a  grandson  of  said  testator. 

And  the  said  petitioner  further  avers  that  he  can  now  show  by 
other  witnesses  than  those  examined  on  the  hearing  of  said  petition 
of  S  V  V,  and  of  which  testimony  neither  his  guai'dian  for  the 
action  nor  his  father  and  friends  were  aware,  and  which  has  since 
been  discovered,  showing  that  said  possession  of  said  premises  by 
said  S  V  Y  was  given  to  him  by  said  S  E  for  his  own  life,  and  no 
longer,  and  proving  admissions  made  by  said  S  V  V  that  he  did 
not  claim  the  fee  simple  of  said  lands,  and  that  he  declined,  for 
that  reason,  to  allow  timber  to  be  cut  on  said  premises,  but  referred 
persons  wishing  to  cut  timber  thereon  to  the  said  testator  for  such 
permission  ;  that  said  S  V  Y  said  he  had  no  such  interest  in  said 
premises  as  authorized  him  to  do,  or  allow  to  be  done,  any  such 
acts  thereon,  and  other  new  matter  showing  that  said  agreement 
set  forth  in  said  petition  was  never  made. 

And  said  plaintiff  further  saith  that  since  said  decree,  the  said 
S  Y  Y  has  sold  and  conveyed  twenty  acres  of  said  100-acre  lot 
above  described,  unto  said  ,  and  the  balance  of  said  100-acre 

lot  to  said  ,  they  well  knowing  how  the  said  title  was  ob- 

tained, and  the  rights  of  the  plaintiff  and  his  said  brother  after 
coming  of  age,  to  contest  the  truth  and  equity  of  said  decree. 

The  plaintiff,  therefore,  prays  that  said  decree  may  be  vacated 
and  set  aside,  and  said  one-half  of  said  100-acre  lot  be  decreed  to 


EQUITY    FORMS.  707 


said  plaintiff,  and  the  other  half  to  the  said  heirs  of  said  Z  T  E, 
and  for  such  other  and  further  relief  as  equity  and  the  nature  of 
the  case  may  require. 

S  W,  Attorney  for  Plaintiff. 

This  and  the  preceding  form  were  taken  from  actual  practice ; 
the  first  was  drawn  from  the  case  of  Long  v.  Mulford,  17  Ohio  St. 
484,  and  the  other  from  a  case  coming  up  in  my  own  practice.  In 
the  ahove  case,  the  court  held  that  a  minor  on  coming  of  age  may, 
hy  an  original  action,  contest  the  justice  of  the  original  decree. 
The  practice  in  England  is  sometimes  to  obtain,  by  motion,  leave 
to  file  a  new  answer  and  retry  the  case,  or  by  petition,  as  that  word 
is  understood  in  England.  Section  28G  of  the  code,  and  section 
534.  subdivision  8,  are  the  only  ones  which  refer  to  this  subject; 
the  first  says  cause  must  be  shown  within  one  year,  and  the  last 
gives  the  court  power  to  modify  such  a  judgment  taken  against  a 
minor.  Section  536  shows  that  it  shall  be  done  by  petition  verified 
by  oath,  setting  forth  the  judgment,  the  grounds  to  vacate  or  mod- 
ify, and  the  defense  to  the  action.  But  the  above  case  holds  that 
it  may  be  done  by  original  petition,  and  must  be  so  done  in  case 
there  has  been  an}*  transfer  of  the  titty,  as  was  the  case  in  the  sec- 
ond form  of  a  petition.  These  forms  will  serve  as  an  outline  of  a 
petition,  which  may  be  adapted  to  almost  any  case  that  may  arise. 

24.    I'ETITIOX  OF  ONE  FIRM  V.  ANOTHER,  WHERE  ONE  MAN    IS    IN    BOTH 

FIRMS. 

A  B  and  C  D  complain  of  the  said  E  F,  J  K,  and  L  M,  for  that 
heretofore,  to  wit.  on  or  about  the        day  of  ,  a.  d.  18     ,  the 

said  A  B,  C  D,  and  L  M  entered  into  partnership,  under  the  name 
of  A  15  A:  Co..  for  the  carrying  on  certain  business  in  partnership, 
in  the  city  of  ,  in  the  county  of  .  and  the  said  E  F,  J  K, 

and  said  L  M  also,  on  or  about  the  same  time,  formed  a  partnership 
under  the  name  of  )•;  F  &  Co.,  for  carrying  on  in  partnership  cer- 
tain business  agreed  on  between  said  defendants,  in  the  city  of 
in  the  State  of  .     And  the  said  plaintff  avers  that  there  were 

Large  dealings  between  the  two  said  firms  within  the  scope  oi  their 

respective  business;   and   that    the   said   firm   of  .defendants, 

became  largely  indebted  to  the  said  linn  of  A  B&  Co..  upon  an 
ace. Mint  current,  which  had  accrued  to  the  said  firm  of  A  B  &  <  !o. 
against  the  said  firm  of  B  F  A:  Co.,  arising  from  divers  dealings 

between  the  said    two  firms;   and    that    the   fir f  A    B  A  Co.  had 

transmitted  to  said  firm  of  E  F  &  Co.  large  quantities  of  produce, 


rG8  EQUITY  FORMS. 


goods,  and  merchandise,  and  bad  advanced  and  paid  money  for 
said  firm  of  E  F  &  Co.,  while  said  firm  of  E  F  &  Co.  had  made  ad- 
vances and  paid  money  to  and  for  said  firm  of  A  B  &  Co.,  wtyereby 
the  account  showed  charges  in  favor  of  the  firm  of  A  B  &  Co. 
against  said  firm  of  E  F  &  Co.  to  the  amount  of  dollars  and 

cents,  and  said  account  showed  credits  to  said  firm  of  A  B  &  Co. 
and  in  favor  of  E  F  &  Co.  to  the  amount  of  dollars  and 

cents,  and  leaving  a  balance  due  from  the  firm  of  E  F  &  Co.  to  the 
firm  of  A  B  &  Co.  in  the  sum  of  dollars  and  cents ;  *  but 

which  accounts  remain  unsettled.  And  said  plaintiff  further  saith 
that  said  L  M  refuses  to  join  with  said  A  B  and  C  D  in  an  action 
to  settle  said  account,  and  said  L  M  has  been  made  a  defendant. 
And  the  said  plaintiffs  here  produce  a  copy  of  said  account,  showing 
the  various  items  thereof  and  the  balance  above  claimed  to  be  due 
on  said  account  current. 

Wherefore  the  said  plaintiffs  ask  that  an  account  may  be  taken 
of  the  dealings  between  said  firms,  and  the  balance  due  the  plaint- 
iff's firm  be  found,  and  said  defendant  firm  be  required  to  pay  the 
same,  and  for  such  other  relief  as  the  nature  of  the  case  may  in 
equity  require. 

¥VP,  Attorney  for  Plaintiff. 

If  there  has  been  a  settlement  between  the  two  firms,  that  fact 
may  be  stated  in  lieu  of  the  words  averring  no  settlement. 

And  the  plaintiffs  further  aver  that  on  or  about  the  day  of 
,  a.  d.  18  ,  the  said  firm  of  A  B  &  Co.  came  to  a  settlement 
and  adjustment  of  said  accounts,  and  there  was  then  found  due  and 
payable  from  the  firm  of  E  F  &  Co.  to  the  firm  of  A  B  &  Co.  the 
sum  of  dollars  and  cents,  and  which  sum  said  firm  of 

E  F  &  Co.  have  refused  and  neglected  to  pay  to  said  firm  of  A  B  & 
Co.,  though  often  requested  so  to  do. 

Wherefore  the  said  plaintiffs  demand  a  judgment  against  said 
defendants  for  said  sum  of  8  ,  so  found  to  be  due  and  owing, 

with  interest  from  the         day  of  ,  a.  d.  18     . 

Note. — The  above  to  come  in  after  the  *. 

This  form  is  copied  substantially  from  the  case  of  Cole  v.  Rey- 
nolds, 18  N.  Y.  74.  The  case  gives  the  law  in  such  a  case,  where 
one  is  member  of  two  firms,  between  which  dealiugs  have  taken 
place.  No  suit  at  law  can  be  sustained,  but  the  matter  must  be 
adjusted  by  a  suit  in  equity.     The  reason  is,  a  man  can  not  sue 


EQUITY   FORMS.  769 


himself.  1  Story's  Eq.  sec.  680 ;  Story  on  Partnership,  sec.  235 ; 
Bosanquet  v.  Wray,  6  Taunt.  597 ;  Mainwaring  v.  Newman,  2  Bos. 
&  Pul.  120.  "In  equity,"  says  Story,  "all  contracts  and  dealings 
between  such  firms,  of  a  moral  and  legal  nature,  are  deemed  oblig- 
atory, though  void  at  law.  Courts  of  equity  in  all  such  cases  look 
behind  the  forms  of  the  transactions  to  their  substance ;  and  treat 
the  different  firms,  for  the  purposes  of  substantial  justice,  exactly 
as  if  they  were  composed  of  strangers,  or  were  in  fact  corporate 
companies." 

25.    ASKING   AN   INJUNCTION  AGAINST  ONE  WHO  COVENANTED  NOT   TO 
PRACTICE   AS   PHYSICIAN   WITHIN   CERTAIN    LIMITS. 

The  said  A  B,  plaintiff,  complains  of  the  said  C  D,  defendant,  for 
that  before  and  at  the  time  of  the  making  of  the  agreement  here- 
inafter set  forth,  said  plaintiff  and  said  defendant  were  both  prac- 
ticing physicians  and  surgeons  in  the  of  ,  in  the  county 
of  ,  and  that  on  the  day  of  ,  a.  d.  18  ,  the  said 
plaintiff  and  said  defendant  entered  into  the  following  agreement, 
in  writing,  and  which  agreement  was  in  the  words  and  figures  fol- 
lowing, that  is  to  say,  (here  set  out  agreement  such  as  made.') 

Wilksville,  August  21,  1869.  This  agreement  made  and  entered 
into  by  tween  the  said  A  B  and  the  said  C  D,  witnesses  that 

the  said  C  D,  in  consideration  of  $  ,  by  the  said  A  B  to  him  in 
hand  paid,  agrees  with  the  said  A  B  that  he,  the  said  C  D,  will 
and  shall  from  and  after  this  date  cease  wholly  to  practice  as  a 
physician  and  surgeon  within  the  following  limits,  to  wit,  within 
ten  miles  of  the  now  residence  of  said  C  D,  in  said  town  of 
"W"  ,  which  said  agreement  was  duly  signed  by  said  C  D,  and 

delivered  to  the  said  AB;  yet  the  said  plaintiff  saith  that  said 
defendant,  not  regaining,  and  in  violation  of  his  said  agreement, 
to  wit,  on  the  day  of  ,  a.  d.  18     ,  did  commence  again 

the  practice  of  a  physician  and  surgeon,  at  the  said  town  of 
\V  ,  and  within  the  distance  of  ten  miles  of  his  former  resi- 

dence in  said  town  of  "W  ,  and  ever  since  has  continued  to 

practice  as  a  physician  and  surgeon  at  the  place  aforesaid,  anil 
within  the  bounds  aforesaid,  to  the  great  damage  of  the  said 
plaintiff;  and  that  said  C  I>  says  that  he  will  continue  to  practice 
foresaid,  in  violation  of  his  said  agreement,  and  to  the  great 
injury  and  damage  oi  said  plaintiff. 

Wherefore  plaintiff:  prays  that  a  provisional  injunction  may  bo 
vol.  i — 49 


770  EQUITY    FORMS. 


granted,  restraining  said  C  D  from  so  practicing  as  a  physician 
and  surgeon  at  said  place,  and  within  the  limits  aforesaid,  until 
the  final  hearing  of  this  case,  and  on  the  final  hearing  a  perpetual 
injunction,  as  aforesaid,  may  be  granted,  restraining  defendant 
from  practicing  as  aforesaid,  and  an  account  may  be  taken  of  the 
damago  sustained  by  defendant  from  the  said  C  D  having  so  vio- 
lated his  said  agreement;  and  for  such  other  and  further  relief  as 
the  equity  and  nature  of  his  case  may  require. 

N  O,  Attorney  for  Plaintiff. 

As  to  the  law  on  contracts  of  this  character,  vide  Lange  v.  Werk, 
2  Ohio  St.  519;  Thomas  v.  Adra'r  of  Miles,  3  lb.  274 ;  Dunlap  v- 
Gregory,  10  N.  Y.  241;  Chappell  v.  Brockway,  21  Wend.  157; 
Nobles  v.  Bates,  7  Cow.  309;  2  Saund.  156,  note  1 ;  Hitchcock  v. 
Coker,  6  Aid.  &  Ellis,  438;  Mitchell  v.  Eeynolds,  1  P.  Wms.  181. 
As  to  injunction  :  Butler  v.  Borleson,  16  Vt.  176 ;  Crutwell  v.  Lize, 
17  Ves.  335;  Williams  v.  Williams,  2  Swan,  253;  3  Daniel  Ch. 
Pr.  1874. 

26.    TO    REFORM    A   CONTRACT. 

The  said  A  B,  plaintiff,  complains  of  said  C  D,  defendant,  for 
that  heretofore,  to  wit,  on  the        day  of  ,  a.  d.  18     ,  the  said 

plaintiff  contracted  with  the  said  C  D,  (here  set  out  the  true  agree- 
ment as  the  plaintiff  claims  that  it  was,)  and  that  said  plaintiff  and 
defendant  procured  one  to  reduce  said  agreement  to  writing, 

and  stated  over  to  said  the  agreement  aforesaid,  as  they  sup- 

posed correctly,  and  that  said  reduced,  as  he  supposed,  said 

agreement  to  writing,  in  the  words  and  figures  following,  that  is 
to  say,  (here  copy  the  written  agreement  literally,)  and  the  said  agree- 
ment was  signed  by  said  parties,  (or,  by  the  said  ,  if  only  one 
signed  it,)  and  with  the  mutual  understanding  of  said  plaintiff  and 
defendant  that  said  written  agreement  was  in  conformity  to  the 
agreement  so  made  and  entered  into  by  and  between  said  plaintiff 
and  defendant ;  but  the  said  plaintiff  avers  that  there  was  a  mis- 
take in  reducing  said  agreement  to  writing,  in  this,  to  wit,  that  by 
the  agreement  made  it  was  agreed  that  (here  set  out  the  true  agree- 
ment in  the  particular  where  the  mistake  is),  and  that  there  was  a 
mutual  mistake  in  the  agreement  as  reduced  to  writing,  in  this,  to 
wit,  (here  set  out  the  written  agreement,  so  as  to  show  wherein  the  mis- 
take is,  and  then  proceed  to  aver  what  the  written  agreement  should 
have  been,)  whereas  the  plaintiff  avers  that  said  written  agree- 
ment, instead  of  being  in  the  words  so  written,  should  have  been 
in  this  particular  written  as  follow,  (here  set  out  the  words  that  should 


EQUITY    FORMS.  771 


have  been  written,  in  place  of  the  words  actually  written,)  and  the 
said  plaintiff  avers  that  said  scrivener  writing  said  agreement 
made  said  mistake  by  misunderstanding  the  agreement  as  stated  to 
him  as  aforesaid,  and  by  the  mutual  mistake  of  said  plaintiff  and 
defendant  the  said  error  in  said  agreement  was  not  discovered,  at 
the  time  of  signing  the  same,  by  either  of  said  parties  thereto ; 
but  said  plaintiff  and  defendant  signed  the  same  with  the  mutual 
belief  and  mistake  that  said  written  agreement  corresponded  with 
the  said  agreement  so  made  between  said  parties. 

The  plaintiff  further  saith  that  a  dispute  has  arisen  between  said 
plaintiff  and  said  defendant  as  to  the  true  meaning  of  said  written 
agreement,  and  said  defendant  now  unjustly  claims  to  enforce  said 
agreement  in  accordance  with  the  same  as  so  reduced  to  writing, 
against  this  plaintiff,  contrary  to  equity  and  good  conscience. 

Wherefore  the  plaintiff  prays  that  said  written  agreement  may 
be  reformed,  and  made  to  correspond  with  the  agreement  actually 
made,  and  for  such  other  and  further  relief  as  equity  and  good  con- 
science may  require. 

FAN,  Attorney  for  Plaintiff. 

The  above  form  may  be  made  to  answer  any  case  that  may  arise. 
The  reformation  of  written  agreements  is  a  subject  of  equity  juris- 
diction, and  the  rule  of  the  court  is,  having  obtained  jurisdiction 
for  the  purpose  of  reforming  the  written  agreement,  it  will  go  on, 
and  do  complete  and  full  relief  for  the  party  under  the  agreement. 
There  are  two  classes  of  cases ;  one  where  the  relief  is  equitable 
on  the  contract  as  reformed,  and  the  other  where  the  remedy  is 
legal.  In  the  former  case,  both  the  correction  and  relief  may  be 
sought  in  the  same  petition;  and  in  this  class  the  court  having 
jurisdiction  to  reform  the  contract,  will,  in  most  cases,  go  on  and 
grant  the  relief  wanted  on  the  reformed  agreement.  Even  where 
the  remedy  is  at  law  on  the  reformed  agreement,  a  court  of  equity 
will,  after  correcting  the  agreement,  proceed  to  grant  full  and  com- 
plete relief  on  the  reformed  agreement;  for,  having  lawful  juris- 
diction of  the  case,  it  will  not  subject  the  parties  to  a  suit  at  law, 
but  grant  the  relief  which  could  be  obtained  at  law  itself 

In  Newcomer  v.  Kline,  11  Gill  &  Johns.  457,  the  court  held  that 
a  bill  in  equity  would  lie  to  correct  a  bill  single,  in  which  the  word 
dollars  had  been  accidentally  omitted,  and  to  enforce  its  collection 
ost  both  principal  and  surety  therein.  Although  in  such  a 
case  assumpsit  would  lie,  yet  the  remedy  is  not  so  ample  as  to  pre- 
vent a  court  of  equity  i'rom  taking  jurisdiction  to  enforce   the 


772  EQUITY    FORMS. 


original  contract,  the  bill  given  being  void  at  law.  So  a  court  of 
equity  has  jurisdiction  to  decree  the  repayment  of  money  paid  by 
mistake,  notwithstanding  the  legal  remedy  by  assumpsit.  Wilkins 
v.  Woodfin,  5  Munf.  183 ;  Willis  v.  Henderson,  4  Scam.  13 ;  Butler 
v.  Durham,  3  Iredell  Ch.  589  ;  McCrae  v.  Hollis,  4  Desau.  Ch.  122  ; 
Waggoner  v.  Minter,  7  J.  J.  Marsh.  173 ;  Pugh  v.  Chesseldine,  11 
Ohio,  109 ;  Makan  v.  Reeve,  6  Blackf.  215.  In  the  case  of  Willis 
v.  Henderson,  supra,  the  court  say,  it  is  competent  for  a  court  of 
chancery  to  correct  mistakes  in  instruments  of  writing  of  all  kinds, 
and  upon  a  proper  case,  in  the  same  suit,  to  grant  relief  upon  the  in- 
strument, when  corrected  in  the  same  manner,  as  if  it  had  been 
made  perfect  in  the  first  instance.  It  is  well  settled  that,  if  the 
jurisdiction  of  a  court  of  equity  attaches,  it  will  go  on  to  do  com- 
plete justice,  though  in  its  progress  it  may  decree  on  a  matter 
which  is  cognizable  at  law.  Cathcart  v.  Robinson,  5  Peters,  263. 
So,  where  jurisdiction  is  acquired  to  obtain  a  discovery,  the  court, 
being  thus  in  possession  of  the  case,  will  go  on  to  determine  the 
whole  matter  in  controversy.  Russell  v.  Clark,  7  Cranch.  69 ;  S.  P., 
Miller  v.  McCan,  7  Paige  Ch.  457 ;  Walcott  v.  Sullivan,  1  Edw.  Ch. 
399 ;  Oldham  v.  Jones,  5  B.  Mon.  458 ;  Miami  Exp.  Co.  v.  U.  S. 
Bank,  Wright,  249 ;  Oliver  v.  Pray,  4  Ohio,  175.  In  this  case 
it  is  said  that,  where  a  court  of  equity  gains  jurisdiction  of  a 
cause  for  one  purpose,  it  may  retain  it  for  all.  Brown  v.  Gardner, 
Harring.  Ch.  291. 

These  cases  show  the  rule,  that  where  jurisdiction  is  obtained  to 
correct  a  mistake,  the  court,  having  corrected  the  mistake,  can  go 
on  to  administer  complete  relief  on  the  reformed  agreement.  This 
matter  is  discussed  elsewhere,  and  nothing  more  need  be  said  here. 

27.    PETITION    AGAINST    A    MARRIED    WOMAN    TO    CHARGE    HER    DEBT 
ON   HER   SEPARATE   PROPERTY. 

The  said  A  B  complains  of  the  said  C  D,  and  E  F,  his  wife,  for 
that  the  said  E  F  is  a  married  woman  and  the  wife  of  said  C  D  at 
the  time  of  the  several  agreements  made  and  proceedings  had 
herein  stated,  and  that  the  said  E  F  is  seized  of,  and  holds  as  her 
separate  property  and  estate,  the  following  real  estate,  (or,  the  fol- 
lowing personal  property,)  situate  in  the  said  county  of  ,  to 
wit,  (here  describe  the  real  estate  as  on  a  suit  to  foreclose  a  mortgage, 
or,  if  it  is  personal  property,  then  describe  it,~)  and  being  so  seized 
of  said  real  estate  as  her  separate  property,  (or,  being  so  possessed 
of  said  personal  property  as  her  separate  estate,)  did,  on  or  about 
the         day  of            ,  A.  d.  18     ,  contract  with  said  plaintiff  to 


EQUITY   FORMS.  773 


make  certain  improvements  thereon,  (Jiere  set  out  ichat  they  icere,) 
for  the  sum  of  dollars  and  cents,  and  said  plaintiff  agreed 
to  make  said  improvements  on  said  real  estate  for  said  sum  of 
money  above  stated,  (or,  if  no  price  is  agreed  on,  then  aver  for  a 
reasonable  price  therefor,  to  be  paid  to  said  plaintiff  by  said  E  F;) 
and  the  said  plaintiff  avers  that  it  was  then  and  there  understood 
and  agreed  by  and  between  said  plaintiff  and  said  E  F  that  her 
separate  property  was  bound  for  the  fulfillment  of  the  contract  on 
her  behalf,  and  the  payment  of  said  sum  of  money  so  to  be  paid 
to  plaintiff  for  making  said  improvements  as  aforesaid ;  and  the 
plaintiff  avers  that,  relying  on  said  agreement  of  said  E  F,  he  pro- 
ceeded and  made  said  repairs,  as  provided  for  in  said  agreement, 
in  a  good  and  workmanlike  manner,  and  within  the  time  agreed 
on,  (or,  in  a  reasonable  time,  if  no  time  is  stated  in  agreement,)  and 
thereby  became  and  was  entitled  to  be  paid  said  sum  of  money 
by  said  E  F,  on  the        day  of  ,  a.  d.  18     ,  and  that  he 

thereupon  notified  said  E  F  of  the  completion  of  said  improve- 
ments, and  demanded  of  her  the  payment  of  said  sum  of  8  , 
with  interest  thereon  from  the  day  of  .  ,  a.  d.  18  ,  but 
that  neither  the  said  E  F,  nor  the  said  C  D,  her  husband,  has  paid 
said  sum  of  money,  nor  any  part  thereof;  and  the  plaintiff  avers 
that  he  has  a  right  to  subject  said  real  estate  of  said  E  F  to  the 
payment  of  said  claim.     {Insert  prayer  as  in  next  form.) 

28.    PETITION    TO    REACH    THE   SEPARATE   PROPERTY   OP   A  WIFE   ON  A 
DEBT    OF    HUSBAND,    SHE  BEING   SURETY   THEREON. 

The  said  A  B  complains  of  the  said  C  D,  and  E  F,  his  wife,  for 
that  at  the  time  hereinafter  named,  said  E  F  was  the  wife  of  said 
C  D,  and  was  seized  and  possessed  of  the  real  and  personal  prop- 
erty hereinafter  described,  and  being  so  seized  and  possessed  of 
Bald  Beparate  property  in  her  own  right,  did  jointly  with  her  hus- 
band,  for  a  loan  of  the  money  stated  in  the  note. hereinafter  set 
forth,  made  by  the  plaintiff  to  the  said  C  D,  execute  and  deliver 
to  the  said  plaintiff  the  following  promissory  note,  to  wit,  {here  set 
out  note  or  contract.  \  and  then  and  there  and  thereby  intended  and 
agreed  that  her  said  separate  property  should  be  liable  for  the 
money  named  in  said  promissory  note,  if  the  same  was  not,  and 
should  not  be  paid  by  her  said  husband,  C  D,  when  the  same  become 
duo  and  payable,  according  to  the  tenor  and  effect  of  the  said  promis- 
sory note;  and  the  plaintiff  avers  that  he  did,  on  condition  that 
the  said  B  V  would  sign  said  note  as  surety  for  her  Baid  husband, 
('   1>,  and  agree  that  her  Beparate  property  aforesaid  should  be 


774  EQUITY    FORMS. 


bound  and  held  liable  for  the  payment  thereof,  loan  said  sum  of 
money  to  said  C  D,  and  took  the  joint  note  of  said  C  D  &  E  F, 
and  said  E  F  promised  then  and  there  that  her  said  separate  prop- 
erty was  and  should  be  held  bound  and  liable  for  the  payment 
thereof;  and  the  said  plaintiff  further  avers  that  the  said  C  D  did 
not  pay  said  promissory  note  when  the  same  became  due  and  pay- 
able, nor  has  either  said  C  D  or  the  said  E  F  since  paid  said 
promissory  note,  nor  any  part  thereof,  but  the  whole  sum  of  $ 
is  still  due  and  unpaid  ;  and  the  said  plaintiff  further  avers  that  at 
the  time  of  giving  the  said  promissory  note  and  now  the  said  E  F 
was  seized  and  possessed  of  the  following  real  and  personal  prop- 
erty, situate  in  said  county,  and  described  as  follows,  to  wit,  (here 
set  out  the  property,)  and  which  property  the  plaintiff  avers  is  liable 
in  equity  to  the  payment  of  the  sum  named  in  said. promissory  note, 
to  wit,  the  sum  of  $  ,  with  interest  thereon  from  the  day 
of  ,  a.  d.  18     . 

Wherefore  the  plaintiff  prays  that  an  account  may  be  taken  of 
the  amount  due  on  said  promissory  note  with  the  interest  thereon, 
and  that  in  case  said  defendants  fail  to  pay  said  sum  so  found  due 
him  by  a  day  to  be  named  by  the  court,  an  order  may  be  made 
that  said  premises,  or  so  much  thereof  as  is  needed  to  pay  the  same 
and  costs,  be  sold  by  the  sheriff  of  this  county,  and  for  such  other 
and  further  relief  as  equity  and  the  facts  of  his  case  may  require. 

S  N,  Attorney  for  Plaintiff. 

The  two  preceding  forms  are  predicated  on  the  case  of  Logan 
v.  Thrift  and  wife,  20  Ohio  St.  62,  and  the  case  of  the  Corn  Exchange 
Ins.  Co.  v.  Babcock  et  al.,  42  N.  Y.  613.  The  first  case  goes  off  on 
the  ground  that  the  wife  in  that  case  had  no  separate  property. 
The  latter  case  decides  that  the  wife's  separate  property  was  liable 
for  a  debt  of  her  husband's  when  she  wrote  on  the  note  evidencing 
the  debt  the  following  indorsement,  to  wit :  "  For  value  re- 
ceived I  hereby  charge  my  individual  property  with  the  payment 
of  this  note.  Armina  Babcock."  In  this  case  a  majority  of  the 
court  held  that  a  personal  judgment  could  be  rendered  against  the 
wife,  on  which  her  property  could  be  sold,  while  the  case  of  Yale 
v.  Dederen,  18  K  Y.  265  ;  S.  C,  22  N.  Y.  450,  holds  that  the 
wife's  separate  property  could  not  be  charged  with  the  payment 
of  a  note  signed  by  her  as  surety  of  her  husband.  In  this  last 
case,  the  court  held  that  the  intent  of  the  wife  to  bind  her  separate 
estate  could  not  be  proved  by  parol. 

In  my  opinion  the  law  will  not  sustain  the  position  that  a  per- 


EQUITY    FORMS.  775 


sonal  judgment  can  be  rendered  against  her.  The  former  rule  in 
equity  as  to  the  separate  equitable  estate  of  the  wife,  was  that 
under  certain  circumstances  she  could  bind  her  estate  in  hands  of 
her^trustees  for  her  own  debt,  and  in  certain  cases  as  surety  for 
her  husband's  debt.  The  statutes  as  to  married  women  nowhere 
create  any  liability  against  her ;  they  simply  declare  her  power  to 
manage  her  separate  property  independent  of  the  control  of  her 
husband.  The  law  nowhere  changes  her  legal  status  as  a  wife,  or 
her  legal  inability  to  contract ;  the  courts  only  apply  the  law  to 
her  separate  property  under  the  statute  which  was  before  applied 
by  a  court  of  equity  to  her  equitable  separate  property,  as  that 
term  was  understood  in  equity.  This  case  is,  therefore,  in  conflict 
with  every  other  case  in  this  respect.  In  Yale  v.  Dederen,  18  N. 
Y.  272,  Judge  Comstock  says :  "A  married  woman  may,  as  inci- 
dental to  the  perfect  right  of  property  and  power  of  disposition, 
which  she  takes  under  the  statute,  charge  her  estate  for  the  pur- 
poses and  to  the  extent  which  the  rule  in  equity  has  heretofore 
sanctioned  in  reference  to  separate  estates."  And  in  the  same  case 
(22  N.  Y.  451),  Judge  Selden  says  that  it  was  settled  in  that  case, 
when  first  before  the  court,  "  that  the  power  conferred  upon  mar- 
ried women  by  these  statutes  to  hold  to  their  separate  use,  and  to 
convey  and  devise  all  their  real  and  personal  estate,  as  if  unmar- 
ried, carried  with  it  the  power  to  charge  such  estate  substantially 
in  the  manner  and  to  the  extent  previously  authorized  by  the  rules 
of  equity  in  respect  to  separate  estates." 

"  By  the  common  law,"  says  Earle,  J.,  in  his  dissenting  opinion, 
"  the  contracts  of  married  women  are  always  void,  and  can  not  be 
enforced  against  them.  But  in  equity,  a  married  woman  having 
separate  estate  has,  for  more  than  a  century  in  England,  been 
treated,  as  to  such  separate  estate,  as  a  feme  sole,  and  capable  of 
charging  such  estate  in  equity  with  all  her  debts  and  obligations. 
.  .  .  So  that  in  England  it  has  been  settled  for  a  long  time  that 
the  separate,  estate  of  a  married  woman  is  charged  with  all  her 
debts  and  obligations,  without  any  express  intention  so  to  charge 
it.  This  intention  is  always  implied  unless  the  contrary  is  proved. 
Iliilnie  r.  Tennant,  1  Br.  C.  C.  10;  Murray  v.  Borlee,  3  My.  &  K. 
220;  1  White  &  Tudor's  Leading  Cases  in  Equity,  324.  The  rule 
thus  settled  in  England,  was  at  an  early  day  substantially  adopted  in 
this  State.  Jacques  v.  Methodisl  Episcopal  Church,  17  Johns.  548; 
North  American  Goal  Co.  v.  Dyett,  7  Paige,9;  S.  C,  20  Wend. 
570  ;  Knowles  V.  McCumby,  10  Paige,  343  ;  Vanderheyden  v.  Mal- 
lony,  1  Comst.  453.     Finally,  in  the  case  of  Yale  v.  Dcdoron,  a 


776  EQUITY   FORMS. 


single  qualification  for  the  first  time  in  this  State  was  added  to 
this  rule.  It  was  held  that,  unless  the  consideration  of  the  con- 
tract was  one  going  to  the  direct  benefit  of  the  estate,  the  intention 
to  charge  the  separate  estate  must  be  stated  in  and  be  a  part  of 
the  conti-iK't.  "With  this  single  qualification,  the  English  rule' in 
equity  I  believe  to  be  the  law  in  this  State." 

"  The  equitable  charge  thus  created  by  the  defendant,  could  be 
enforced  only  in  equity.  This  action,  however,  seems  to  have 
been  commenced  and  tried,  and  was  decided  as  an  action  at  law. 
A  personal  judgment  was  rendered  against  the  defendant,  with  the 
other  parties  to  the  note  for  money;  and  in  this  there  was  manifest 
error.  She  is  the  only  party  who  appealed  from  the  judgment, 
and  the  only  question  for  us  to  consider  is,  whether  the  judgment 
was  authorized  as  against  her;  and  if  not,  what  shall  we  do  with 
it?  "  Earle,  J.,  held  that  the  proper  judgment  as  to  Mrs.  Babcock, 
should  be  to  find  the  amount,  and  adjudge  the  same  to  be  a  charge 
upon  her  separate  estate,  to  be  levied  and  collected  by  execution.  But 
I  think  he  has  gone  even  here  too  far;  the  judgment  should  be  an 
old  decree  in  chancery,  finding  the  amount,  and  ordering  a  sale,  in 
case  the  sum  was  not  paid  before  a  certain  day.  To  do  this 
the  property  must  be  Ascribed  in  the  petition,  as  in  all  cases 
where  specific  property  is  to  be  subjected  to  the  payment  of  a 
debt. 

ANSWEES. 

The  answer,  in  a  chancery  cause,  is  altered  much  more  by  the 
code  than  the  structure  of  the  petition  is.  The  answer  now  need 
cover  only  so  much  of  the  case  as  the  party  denies ;  the  matter  un- 
answered being  taken  to  be  admitted.  And  as  the  whole  right  to 
discovery,  as  discovery,  is  abolished,  the  defendant  is  bound  only 
to  meet  the  case  made  by  the  plaintiff  in  his  petition ;  he  can  not, 
as  we  see,  set  up  the  facts  as  he  understands  them;  because  that 
would  be  a  discovery  of  his  knowledge  of  the  facts,  which  facts 
might  make  a  new  case,  instead  of  meeting  that  of  the  plaintiff. 
The  truth  is,  the  code  has  restricted  an  answer  in  an  equity  case  to 
the  strictness  of  a  common-law  pleading;  it  can  consist  of  but  two 
matters:  First.  A  general  or  special  denial  of  the  plaintiff's  case,  as 
made  in  his  petition ;  Second.  New  matter,  constituting  a  defense, 
counter-claim,  or  set-off;  but  as  set-off  and  counter-claim  can  not 
be  known  in  a  case  strictly  of  equitable  nature,  the  answer  must 
contain  new  matter,  which,  if  true,  in  law  defeats  the  plaintiff's 
right  to  relief — as  a  plea  to  a  petition  by  one  partner  against 


EQUITY    FORMS.  777 


another  of  no  partner,  a  plea  of  the  statute  of  frauds,  etc.— so  a 
settlement,  or  release,  etc.,  may  be  pleaded.  Whether  justice  is  to 
be  subserved  by  this  rigid  system  of  pleading  in  equity  cases,  is 
much  to  be  doubted.  It  places  the  defendant  very  much  in  the 
power  of  the  plaintiff  and  the  court.  He  can  not  set  up  in  his  an- 
swer a  different  state  of  facts  from  what  the  plaintiff  has  done  in 
his  petition  ;  and  as  he  ran  but  deny  this,  he  is  at  the  mercy  of  the 
court,  who  can  permit  the  plaintiff,  by  amendment,  to  make  a  case 
which  he  never  had  an  opportunity  to  prepare  to  meet.  Under 
the  former  system  of  pleading  in  chancery,  the  defendant  set  up 
the  case  as  he  understood  it,  after  denying  the  case  as  the  plaintiff 
had  stated  it.  The  plaintiff  could  then  either  amend,  to  make  his 
case  correspond  with  the  case  as  stated  by  the  defendant,  or  he  could 
go  to  hearing  on  the  case  as  stated  by  himself;  and  then  he  could 
not  recover,  if  the  evidence  failed  to  establish  the  case  as  stated  by 
himself.  A  complainant  in  equity  was  held  to  recover  only  on  the 
case  made  by  himself,  and  he  could  recover  on  no  other.  But  now, 
under  the  unlimited  discretion  vested  in  a  court,  to  allow  amendments 
at  the  trial,  and  to  proceed  in  the  case,  a  defendant  never  can  tell 
when  he  is  safe,  unless  he  is  at  the  expense  of  trying  not  only  the 
case  as  made  by  the  plaintiff,  but  every  other  possible  aspect  of  the 
case  which  the  evidence  may  disclose.  No  continuance  can  be 
granted,  unless  the  court  thinks  the  party  has  been  taken  by 
surprise ;  and  what  is  a  surprise  is  a  matter  not  so  easy  to  decide. 
The  court  will  probably  say  that  the  party  must  have  known  the 
exact  facts  of  the  case,  and  why  did  he  not  prepare  to  meet  them  ? 
All  the  answer  he  can  make  is,  I  prepared  to  meet  the  case  made, 
and  had  no  right  to  make  expense  in  meeting  any  other.  If  the 
court  thinks  otherwise,  then  the  party  is  amended  into  a  case 
which  he  has  never  had  a  chance  to  defend ;  and  judgment  is  ren- 
dered against  him  without  his  ever  having  had  practically  a  day 
in  court;  because,  knowing  the  plaintiff  might  have  some  kind  of 
a  case  against  him,  though  not  the  one  sued  on,  the  court  thinks 
he  should  have  prepared  himself  to  meet  that  case,  instead  of  the 
one  made  in  the  pleadings.  It  may  be  this  is  an  improvement  in 
the  practice  of  a  court;  but  it  will  be  found  to  be  no  improvement 
in  tin-  administration  of  justice. 

The  form  of  an  answer,  therefore,  must,  in  each  case,  depend 
solely  on  its  character.  The  statute  of  limitations  and  fraud  will 
be  pleaded  as  at  law;  so  will  also  a  release,  or  settlement,  or  in- 
fancy, etc.  The  forms  at  law  will  answer  in  all  actions  founded 
upon  principles  of  equity.     In  accounts,  trusts,  etc.,  if  the  defend- 


778  EQUITY   FORMS. 


ant  can  not  deny  the  trust,  or  the  fact  which  constitutes  the  right 
to  an  account,  the  decree  or  judgment  for  the  account  must  pass, 
of  course,  and  the  whole  matter  must  be  gone  into  before  the 
master.  The  defendant  can  no  longer  set  up  in  his  answer  a 
statement  of  the  account.  He  must  deny  his  liability  to  account, 
or  ho  has  no  defense ;  the  condition  of  the  accounts  is  a  matter  for 
the  matter.  To  a  petition  by  a  partner  for  an  account,  he  can 
deny  the  partnership  ;  for  on  that  fact  rests  the  right  of  the  plaint- 
iff to  call  for  the  account;  or  he  may  set  up  a  new  fact,  which, 
admitting  the  partnership,  shows  that  the  right  has  been  extin- 
guished— as  by  an  account  and  settlement,  or  a  release,  or  by  a 
purchase  in  gross  of  the  interest  of  the  plaintiff  in  the  partnership 
property,  etc.  So  a  party  may  deny  that  he  is  a  trustee  ;  or, 
admitting  that  he  was,  he  may  set  up  any  fact  which  legally  ex- 
tinguishes that  relation  between  him  and  the  plaintiff.  So,  on  a 
petition  for  specific  performance,  he  may  deny  any  contract ;  he 
may  set  up  that  it  was  not  in  writing,  or,  in  a  case  of  part  perform- 
ance, he  may  deny  the  facts  set  up  as  a  part  performance,  or  he 
may  deny  that  he  gave  the  plaintiff  possession,  or  that  he  knew  of 
the  improvements  ;  or  possibly  he  may  plead  that  the  plaintiff  was 
in  possession  as  tenant,  and  not  as  purchaser,  and  did  all  the  acts  as 
such  tenant,  and  not  under  his  said  contract  of  purchase;  though  a 
denial  that  there  had  been  any  part  performance,  as  stated  in  the 
petition,  would  probably  be  all  that  is  necessary ;  as  the  facts,  and 
circumstances,  and  doings  of  the  party  would  be  mere  evidence  to 
prove  the  part  performance.  It  may  be  doubtful  whether  a  peti- 
tion should  do  more  than  state  that  the  vendor  put  him  in  posses- 
sion of  the  premises,  and  that  he  has  cultivated  and  improved  the 
same,  as  his  own,  from  the  time  when  so  put  into  possession  until 
the  plaintiff  undertook  to  eject  him  or  until  the  commencement  of 
the  suit;  and  the  case  of  Wooden  v.  Strew  countenances  this 
doctrine.     10  Pr.  48. 

Where  the  defendant  wishes  to  interpose  a  general  denial,  he 
may  do  it  in  the  general  form  already  given — as  that  the  defend- 
ant denies,  all  and  singular,  the  averments  and  allegations  con- 
tained in  the  said  petition.  Special  denials  must  of  course,  take 
issue  on  some  one  particular  allegation  in  the  petition  ;  and  then 
it  will  be  expressed  in  the  negative  of  the  averment  in  the  petition. 
There  can  be  no  difficulty  in  framing  such  denials,  since  their  form 
is  controlled  by  that  of  the  form  of  the  averment. 


EQUITY   FORMS.  779 


I.  General  Denial. 

29.   GENERAL   FORM. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he  denies,  all  and 
singular,  the  matters  and^things,  and,  all  and  singular,  the  allega- 
tions and  averments  contained  in  the  petition  of  the  said  plaintiff, 
in  manner  and  form  as  the  same  are  therein  set  forth  and  stated. 

This  general  form  will  answer  in  all  cases  where  the  defendant 
can  say  that  the  case  stated  is  untrue.  As  has  already  been  said, 
the  defendant  is  not  called  upon  to  meet  any  case  hut  the  one  stated 
in  the  petition  ;  hence,  if  the  plaintiff  has  made  a  mistake  in  set- 
ting out  his  case,  the  defendant  has  no  other  defense  than  to  deny 
the  case  made  ;  since  he  can  not  be  permitted  to  set  up  the  dispute 
as  he  understands  it. 

II.  Special  Denials. 

30.  DENIAL  OF  THE  AGREEMENT  ALLEGED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he  did  not  contract  and 
agree  with  the  said  plaintiff,  in  manner  and  form  as  the  said  plaint- 
iff hath  in  his  said  petition  set  forth  and  alleged. 

31.    A   SECOND   FORM. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  he  did  not  make  with  the 
said  plaintiff  the  said  agreement,  by  the  said  plaintiff  set  forth  and 
alleged  in  his  said  petition. 

32.    DENIAL   OF   A   DEED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  did  not 
execute  and  deliver  to  the  said  defendant  the  said  deed  of  convey- 
ance, in  manner  and  form  as  the  said  plaintiff  hath  in  his  said  ji>  i  i- 
tion  alleged. 

33.    A   SECOND    FORM. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  did  not 
convey  to  the  said  defendant  the  lands  and  tenements  in  tho  said 


7S0  EQUITY   FORMS. 


petition  described,  in  manner  and  form  as  the  said  plaintiff  hath 
thereof  in  his  said  petition  alleged. 

34.    MORTGAGE   NOT   RECORDED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saitb  that  the  said  plaintiff  did  not 
cause  the  said  deed  of  mortgage  to  be  recorded,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

35.   EQUITY   OF   REDEMPTION   NOT   ASSIGNED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  tbat  the  said  did  not 
convey  his  equity  of  redemption  in  and  to  the  said  premises,  in 
said  petition  described,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  alleged. 

36.   MORTGAGE   NOT   ASSIGNED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  did  not, 
by  deed  duly  executed,  convey  all  his  right  and  title,  as  such  mort- 
gagee, in  and  to  the  said  premises,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  petition  alleged. 

37.    NO   EQUITABLE   ASSIGNMENT. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  did  not 
assign  and  transfer  to  the  said  defendant  the  note  in  said  deed  of 
mortgage  mentioned,  and  the  money  due  thereon,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

38.    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

1.  Wo  contract,  as  above. 

2.  That  the  said  plaintiff  did  not  pay  to  the  said  defendant  the 
said  sum  of  $  ,  in  manner  and  form  as  the  said  plaintiff  hath 
in  his  said  petition  alleged. 

3.  That  the  said  plaintiff  did  not  tender  the  said  sum  of  $ 

to  the  said  defendant,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petition  alleged. 

4.  That  the  said  plaintiff  did  not  put  the  said  defendant  into  the 
possession  of  the  said  premises,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  petition  alleged. 


EQUITY   FORMS.  781 


5.  That  the  said  did  not  take  possession  of  the  said  prem- 
ises, and  do  the  said  acts,  and  make  the  said  improvements  thereon, 
under,  and  by  virtue,  and  in  part  performance  of,  the  said  contract 
of  sale  and  purchase,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  petitions-alleged. 

6.  That  the  said  plaintiff  was  not  seized  in  fee  simple  of  the  said 
premises,  and  could  not  make  to  the  said  defendant  a  good  and 
sufficient  title  thereto,  as  by  his  said  contract  he  was  bound  to  do. 

39.  creditor's  action. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith — 

1.  That  there  is  no  record,  remaining  in  said  court,  of  such  re- 
covery as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

2.  That  the  said  has  goods  and  chattels,  lands  and  tene- 
ments, liable  to  execution  for  the  satisfaction  of  the  money  due  on 
the  said  judgment. 

3.  That  the  said  has  no  goods  or  chattels,  or  effects  of  the 
said  plaintiff,  in  his  hands  and  custody,  in  manner  and  form  as  the 
said  plaintiff  hath  in  his  said  petition  alleged. 

40.  denial  of  a  trust. 

The  said  C  D,  defendant,  now  comes,  aDd  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  defendant  denies 
that  he  received  the  said  ,  in  said  petition  mentioned,  for  the 

purposes  and  on  the  trusts  aforesaid,  in  manner  and  form  as  the 
said  plaintiff  hath  in  his  said  petition  alleged 

41.    DENIAL    OF   WASTE. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith — 

1.  That  the  said  defendant  is  not  guilty  of  the  waste  and  de- 
struction aforesaid,  in  manner  and  form  as  the  said  plaintiff  hath 
in  his  said  petition  alleged. 

2.  That  the  said  defendant  does  not  hold  the  said  premises  under, 
and  as  tenant  to,  the  said  plaintiff,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  petition  alleged. 

3.  That  the  Baid  did  not  demise  the  said  premises  to  the 
said  ,  in  manner  and  form  as  the  said  plaintiff  hath  in  his 
said  petition  alleged. 


782  EQUITY  FORMS. 


42.  TO  CANCEL  NOTE. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  promissory  note 
was  not  executed  and  delivered  by  the  said  plaintiff  on  the  condi- 
tion and  understanding  by  the  said  plaintiff  in  his  said  petition 
alleged  ;  but  the  said  defendant  avers  that  the  same  was  delivered 
by  the  said  plaintiff,  absolutely  and  without  any  condition  what- 
ever. 

43.    TO   SET   ASIDE   A   DEED. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  the  said  defendant  did 
not  obtain  the  said  deed  from  the  said  plaintiff  by  fraud  and  mis- 
representation, in  manner  and  form  as  the  said  plaintiff  hath  in  his 
said  petition  alleged. 

44.    FOR   AN    ACCOUNT. 

The.  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  there  are  no  such  mutual 
dealings  and  accounts  between  the  said  plaintiff  and  defendant,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition 
alleged. 

45.    TO    CORRECT    A   STATED    ACCOUNT. 

The  said  C  D,  defendant,  now  comes,  and  for  answer  to  the  peti- 
tion of  the  said  A  B,  plaintiff,  saith  that  there  are  no  such  mistakes 
and  errors  in  the  stating  of  the  said  account,  in  manner  and  form 
as  the  said  plaintiff  hath  in  his  said  petition  alleged. 

The  above  are  given  as  mere  hints  of  what  a  special  denial  may 
be  in  a  case  founded  on  principles  of  equity.  The  object  has  been 
to  make  a  material  issue  in  the  fewest  words  possible.  The  words 
"manner  and  form"  are  used  because  they  have  received  such  a 
construction  that  they  put  in  issue  only  those  circumstances  of  the 
averment  which  are  material,  and  without  proof  of  which  the 
main  fact  can  not  be  found  to  be  proved.  These  special  denials 
must,  of  course,  depend  mainly  upon  the  facts  of  each  particular 
case  ;  and  the  pleader  must  exercise  his  own  judgment  in  framing 
them.  The  denial  must  be  of  a  material  fact,  and  it  must  be  of  the 
fact,  not  of  its  incidents.  Hence  it  becomes  important  that  the 
pleader  should  be  able  to  discriminate  between  the  fact,  as  that 
word  is  legally  expounded  in  pleading,  and  the  incidents  and  evi- 


EQUITY    FORMS.  783 


dence  of  it.  "Where  the  charge  is  that  a  deed  was  obtained  by 
fraud,  a  denial  that  the  deed  was  obtained  by  fraud,  in  manner  and 
form  as  alleged,  puts  in  issue  the  facts  of  fraud  charged  in  the  bill, 
and  nothing  else;  and  the/plaintiff  is  put  to  the  proof  of  the  case, 
as  made  in  his  petition.  He  must  prove  substantially  the  fraud,  or 
acts  of  fraud,  there  alleged.  The  rule  that  the  proof  and  allega- 
tions must  correspond  is  just  as  strict  under  the  code  as  under  the 
old  system  of  practice.  It  is  only  by  an  amendment  that  the  effect 
of  a  variance  can  be  avoided. 

46.    NO   PARTNER. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  A  B  and  the 
said  C  D  were  not  partners  in  business,  in  manner  and  form  as  the 
said  plaintiff  hath  in  his  said  petition  set  forth ;  and  this  he  is 
ready  to  make  appear. 

47.    STATUTE    OF   FRAUDS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  said  action  ;  because  he  saith  that  neither  he,  this 
defendant,  nor  any  person  by  him  legally  authorized,  did  ever 
make  or  sign  any  contract,  or  agreement  in  writing,  binding  this 
defendant  to  make  any  such  conveyance  of  the  said  premises  to  the 
said  plaintiff  as  he,  the  said  plaintiff,  has  in  his  said  petition  de- 
manded ;  and  this  the  said  defendant  is  ready  to  make  appear. 

48.    SPECIAL   DENIAL    OF   FRAUD. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he  did  not  make  the 
said  representations,  in  manner  and  form  as  the  same  are  in  the 
said  petition  alleged,  knowing  the  same,  at  the  said  time,  to  be  false 
and  untrue ;  and  of  this  he  puts  himself  upon  the  court. 

49.    DENIAL   OF   TRUST. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he,  the  said  plaintiff, 
did  not  deliver,  and  the  said  defendant  did  oot  receive,  the  said 
bond  and  mortgage,  iii  the  said  p<  t  it  ion  mentioned,  upon  the  trust 
and  confidence  therein  alleged;  but  the  said  plaintiff  avers  thai 
he  received  the  same  as  and  for  his  own  property,  absolutely,  and 


784  EQUITY   FORMS. 


•without  any  trust  thereto  attached ;  and  of  this  he  puts  himself 
upon  the  court. 

This  must  ho  held  sufficient.  To  set  up  the  absolute  facts  of  the 
transaction  is  only  setting  up  the  evidence,  which  shows  that  there 
was  no  trust,  and  on  that  ground  such  a  plea  or  answer  would  be 
Objectionable.  This  answer  must  admit  all  the  evidence  tending 
to  show  the  fact  of  trust,  or  no  trust. 

50.   SPECIAL   DENIAL   OP   A   PART   PERFORMANCE. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he,  this  defendant,  did 
not  put  the  said  plaintiff  into,  nor  did  he  consent  to  the  said  plaint- 
iff's taking  possession  of  the  said  premises,  under  and  in  part  exe- 
cution of  the  said  pretended  sale  and  contract  of  the  said  premises, 
as  charged  in  said  petition ;  but  the  said  defendant  avers  that  the 
said  ,  of  his  own  wrong,  and  without  the  license,  and  against 

the  consent  of  the  said  defendant,  entered  into  said  premises,  and 
occupied  and  improved  the  same ;  and  this  he  prays  may  be  in- 
quired of  by  the  court. 

51.  BONA   FIDE   PURCHASER. 

•  And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  action  aforesaid ;  because  he  saith  that  the  said  de- 
fendant did,  on  the  day  of  ,  a.  d.  18  ,  buy  of  the  said 
the  said  lands  and  tenements,  bona  fide,  for  the  considera- 
tion of  $  ,  he,  the  said  ,  then  being  in  possession  thereof, 
(here  state  how  and  when  paid,  and  if  notes  were  given,  aver  the  giving 
of  them,)  and  without  any  fraud  or  intent  to  hinder,  or  delay,  or 
defraud  the  said  A  B,  or  the  other  creditors  of  the  said  ,  and 
without  any  knowledge,  information,  or  belief  that  the  said 
sold  the  said  premises  with  the  intent  charged  in  the  said  petition ; 
and  this  he  is  ready  to  make  appear. 

52.  PLEA   OF    AN   ACCOUNT. 

And  now  comes  the  said  C  D,  defendant,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  plaintiff  ought 
not  to  have  his  aforesaid  action  ;  because  he  saith  that,  after  the 
said  dealings  in  said  petition  named,  and  before  the  commence- 
ment of  this  action,  the  said  A  B  and  the  said  C  D  came  to  a 


EQUITY    FORMS.  785 


mutual  accounting  touching  the  several  matters  and  things  in  said 
petition  mentioned,  and  on  the  said  accounting  there  was  found 
due  from  the  said  to  *n*e  said  ,  $         ,  as  a  final  balance 

upon  said  mutual  dealing  and  matters  between  the  said  A  B  and 
the  said  C  D  ;  and  the  said  C  D  avers  that  to  the  best  of  his  knowl- 
edge and  belief  the  said  stated  account  is  just  and  true  ;  and  this 
he  is  ready  to  make  appear. 

It  is  said,  in  2  Atk.  399,  that  stated  accounts  must  be  in  writ- 
ing. Still  this  is  to  be  doubted ;  at  least,  it  need  not  be  averred  in 
the  answer:  that  would  be  matter  of  proof.  But  where  the  pe- 
tition is  brought  to  set  aside  an  account  for  errors  or  fraud,  this 
plea  will  not  answer ;  then  the  answer  must  meet  the  averments  in 
the  petition  which  show  the  mistake  or  fraud  in  the  stated  account. 
An  account  made  out  by  one,  and  sent  to  another,  will  become  an 
account  stated,  if  retained  by  the  party  without  any  objection 
being  made  thereto.  2  Atk.  252.  The  law  as  to  a  stated  account 
is  thus  stated  in  a  very  recent  case — that  of  Lockwood  v.  Thorn, 
1  Kernan,  170.  It  is  not  necessary,  to  make  a  stated  account,  that 
it  should  be  signed  by  the  parties.  It  is  sufficient  if  it  has  been 
examined  and  accepted  by  both  parties.  And  this  acceptance 
need  not  be  expressed  ;  it  may  be  implied  from  circumstances — as 
keeping  it  any  length  of  time.     12  Peters,  300,  334. 

The  ordinary  pleas  in  equity  are  still  good  pleas  in  similar  cases 
under  the  code.  The  most  common  ones  in  abatement  are  infancy, 
coverture,  idiocy,  and  lunacy.  Forms  for  these  pleas  have  been 
already  given ;  and  those  forms  will  answer  in  cases  founded  on 
equitable  principles,  as  well  as  in  those  founded  on  legal  principles. 

So  the  defendant  may  plead  that  he  or  the  plaintiff  do  not  sus- 
tain the  character  in  which  they  sue  or  are  sued — as  that  the  de- 
fendant is  not  a  feme  sole,  or  not  heir,  or  administrator,  etc.  So 
a  plea  that  the  plaintiff  is  not  the  person  he  pretends  in  his  pe- 
tition to  be,  or  that  he  docs  not  sustain  the  character  which  he 
assumes  is  good.  Story  Eq.  5G3.  So  where  one  claims  as  heir,  a 
plea  may  be  interposed  that  he  is  not  heir.  2  Ves.  &  Beames,  159 ; 
2  Bro.  Ch.  143 ;  3  lb.  489.  So  if  one  sues  as  a  partner,  a  plea  that 
he  is  not  a  partner  would  be  good.  Sanders  v.  King.  6  Madd.  61. 
So  to  a  bill  by  a  plaintiff,  as  a  creditor  of  an  estate,  a  plea  that  he 
is  not  a  creditor,  and  that  the  deceased  was  not  indebted  to  him, 
is  good.  Thring  v.  Edgar,  2  Sim.  &  Stu.  274. 
vol.  i — 50 


786  EQUITY    FORMS. 


The  forms  of  these  pleas  are  mostly  negative,  and  require  very 
little  skill  to  frame  them.     The  following  will  serve  as  a  guide  : 

53.    ANSWER,    NOT   THE    PERSON    HE    ASSUMES   TO    BE. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  said  plaintiff  ought 
not  to  have  his  said  action  ;  because  he  saith  that  the  said  plaintiff 
is  not  the  executor  of  the  last  will  and  testament,  (or,  the  adminis- 
trator of  the  estate ;  or,  heir  ;  or,  widow,)  of  the  said  ,  de- 
ceased, as  the  said  plaintiff  hath  in  his  said  petition  alleged  ;  and 
this  the  said  defendant  is  ready  to  make  appear. 

To  an  action  by  an  heir  to  recover  real  estate,  the  defendant 
may  set  up  by  plea  a  conveyance  from  the  ancestor.  So  to  a  pe- 
tition filed  to  set  aside  a  conveyance  for  fraud,  a  plea  of  title  para- 
mount, under  a  former  conveyance,  may  be  pleaded  in  bar.  So 
lapse  of  time  may  be  pleaded — though  this  is  a  defense  growing 
out  of  the  evidence  in  the  case  itself — and  effect  would  be  given  to 
it  on  the  hearing ;  but  still,  if  a  party  has  no  other  defense,  he 
must  plead  this.  It  seems  probable  that  our  present  statute  of 
limitations  applies  to  cases  in  equity,  as  well  as  to  those  at  law  ; 
and  hence  the  doctrine  of  lapse  of  time  no  longer  exists  in  Ohio, 
but  a  positive  limitation  is  fixed  by  statute.  The  limitation  of  ten 
years  will  apply  to  trusts  and  other  equitable  rights,  if  no  other 
will  reach  them.  Section  18  provides  that  an  action  for  relief, 
not  hereinafter  provided  for,  can  only  be  brought  within  ten 
years  after  the  cause  of  action  shall  have  accrued.  This  limitation 
must,  of  course,  be  pleaded  ;  but  the  forms  already  given  are  suf- 
ficient in  all  cases. 

If  the  code  is  to  be  so  construed,  as  it  ought  to  be,  that  a  defense 
in  a  case  founded  on  principles  of  equity,  can  be  made  according 
to  the  law  regulating  pleadings  in  chancery,  then  the  answer  will, 
of  course,  first  deny  whatever  in  the  petition  the  defendant  claims 
to  be  untrue,  and  then  set  up  any  additional  and  new  matter 
which  avoids  the  case  as  stated.  In  this  way  a  defendant  can  deny 
the  contract  as  stated  in  the  petition,  and  set  it  up  as  the  defend- 
ant claims  it  to  be ;  or  he  can  deny  facts  as  stated,  and  set  them 
forth  as  he  claims  them  to  be.  And  this  is  still  the  practice  under 
the  code,  as  followed  by  the  best  lawyers.  If  the  code  does  not 
admit  of  this  pleading,  it  ought  to  be  amended,  so  as  to  admit  it. 

The  form  of  such  answer  is  very  simple.  The  following  will 
serve  as  a  skeleton  of  one : 


EQUITY    FORMS.  787 


54.    ANSWER,.  TO    SPECIAL   COUNTS. 

And  the  said  C  D,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  he  denies,  (here  state 
what  parts  of  the  petition  he  does  controvert;  then  any  new  matter 
admissible  as  a  defense,  by  showing  a  different  state  of  facts,  a  different 
agreement,  or  any  new  matter  which  bars  a  once  existing  right  of 
action.) 

The  answer  now,  even  in  this  shape,  is  a  mere  pleading ;  and 
hence  nothing  but  such  facts  as  in  pleading  are  called  facts  should 
be  stated.  All  matters  which  are  merely  evidence  of  the  fact 
should  be  omitted.  Under  the  former  system  of  pleading  in  equity- , 
discovery,  evidence  of  the  real  fact,  was  sought  for;  and  this  dis- 
covery, the  statement  of  this  evidence,  constituted  the  greater  por- 
tion of  every  answer  :  but  the  code  has  abolished  all  this,  and  left 
the  petition  in  such  a  case  the  mere  stating  part  of  an  old  bill  in 
chancery.  This  method  must,  of  course,  very  much  abbreviate  the 
length  of  pleadings  in  a  case  founded  on  principles  of  equity,  if 
the  principles  of  the  code  are  carried  out  in  practice.  All  aver- 
ments not  denied  are  now  taken  to  be  true  for  the  purposes  of  the 
case ;  hence  a  defendant  need  notice  no  averment  of  fact  in  the 
petition,  unless  he  wishes  to  deny  it,  absolutely  or  qualifiedly.  An 
absolute  denial  may  be  expressed  in  a  simple  negation  of  the  aver- 
ment; a  qualified  one,  by  a  denial  of  the  fact  as  averred;  and  a 
statement  of  it  as  the  defendant  admits  the  truth  to  be.  The  de- 
fendant, in  the  latter  case,  would  say  that  he  denies,  etc.,  (repeating 
the  averment;)  but  saith  that  he  did,  etc.,  (here  state  the  case  or  fact 
as  he  understands  it  to  be.)  Suppose  the  averment  to  be  met  is  one 
alleging  a  sale  of  real  estate  with  the  sum  to  be  paid,  and  the  times 
of  payment,  and  that  tins  statement  is  incorrect.  The  defendant 
would  answer  that  he  denies  that  he  contracted  to  sell,  ami  did  sell, 
the  said  premises  to  the  said  plaintiff  for  the  said  sum  of  8  , 
payable  at  the  times  and  in  the  manner  alleged  in  the  said  petition  ; 
bill  the  said  defendant  saith  that  he  did  contract  to  sell,  and  did 
sell,  to  the  said  plaintiff  the  said  premises  for  the  sum  of  ,  to 

be  paid  by  the  -aid   plaintiff  1<>   the  said  defendant.  >  ,  in  one 

year,  with  interesl  ,  in  two  years,  etc.     So,  it'  the  petition  in 

such  a  case  included  land,  which  the  defendant  did  not  sell,  the  de- 
fendant would  deny  that  he  sold  the  land  described  in  the  said 
petition,  but  Bay  thai  he  did  sell  the  following  described  land  or 
premises,  setting  them  forth  by  metes  and  bounds.  According  to 
the  strid  letter  of  the  code,  the  simple  denial  is  all  that  is  neces- 


788  EQUITY    FORMS. 


sary;  because-  if  the  defendant  is  right  in  his  view  of  the  case,  the 
plaintiff  will  be  out  of  court  on  the  trial,  on  a  material  variance: 
but  then  comes  the  unlimited  power  to  amend  the  plaintiff  into  a 
case,  which  the  defendant  has  never  had  an  opportunity  to  meet; 
and  whether  he  ever  shall  have  such  opportunity  depends  upon  the 
mere  un trammeled  views  of  the  court,  as  to  whether  the  party  is 
taken  by  surprise  or  has  been  misled  in  his  defense.  It  may  bo 
policy  in  a  plaintiff  to  misstate  his  case,  and  then  on  the  trial 
amend  it  into  shape,  especially  if  he  has  a  court  which  is  loth  to 
believe  that  a  party  can  be  misled  by  such  misstatement.  Such  a 
trick  may  throw  the  adverse  party  off  his  guard,  and  mislead  him 
in  the  preparation  of  his  defense.  And  if  such  should  be  the  case, 
still,  if  the  court  thinks  he  has  not  been  misled,  it  can  force  him  to 
go  on,  and  render  a  final  judgment  in  the  case.  Sec.  131.  Surely 
a  code  which  allows  this  is  a  liberal  one. 

55.    ANSWER   TO    A    PETITION    TO    ADJUST    LIENS  AND  PROCURE  A  SALE 
OF    REAL   ESTATE. 

And  the  said  E  F,  defendant,  now  comes,  and  for  answer  to  the 
petition  of  the  said  A  B,  plaintiff,  saith  that  the  said  C  D  did,  on 
the        day  of  ,  a.  d.  18     ,  convey  the  premises  in  the  said 

petition  described,  to  the  said  E  P,  in  fee  and  mortgage,  to  secure 
the  payment  of  the  sum  of         dollars  and  cents,  with  interest 

thereon,  at  the  rate  of  per  cent,  per  annum,  from  the  said  C  D 

to  the  said  E  F,  which  deed  of  mortgage  was  afterward,  on  the 
day  of  aforesaid,  duly  left  for  record  with  the  recorder  of  said 

county  of  ,  and  from  which  date  of  recording  the  lien  of  the 

said  E  F  attached ;  and  the  said  E  F  says  that  the  said  C  D  has 
paid  on  the  same  the  following  sums,  to  wit,  $  on  the  day 

of  ,  a.  d.  18     ,  etc.,  and  the  said  E  F  says  that  the  balance  of 

the  said  sum  of  dollars  and  cents  is  still  due  and  owing  from 
the  said  C  D  to  him,  and  is,  and  has  been,  a  lien  on  the  said  prem- 
ises from  the  said        day  of  ,  a.  d.  18     ,  aforesaid. 

50.    ANSWER    IN    SIMILAR   CASE,    SETTING    UP   A   JUDGMENT. 

And  the  said  G  H  now  comes,  and  for  answer  to  the  petition  of 

the  said  A  B,  plaintiff,  saith  that  this  defendant,  on  the        day  of 

,  A.  D.  18     ,  did  recover,  in  the  Court  of  Common  Pleas,  in 

and  for  the  county  of  aforesaid,  a  judgment  against  the  said 

C  B,  for  the  sum  of  dollars  and  cents,  his  debt,  and 

dollars  and  cents,  his  costs  in  said  action;    and  the 


EQUITY    FORMS.  789 


said  G  H  says  that  the  saifrjudgment  is  in  full  force  in  law,  and 
wholly  due  and  unpaid,  and  is,  and  has  been,  a  subsisting  lien  on 
said  premises,  from  the  said        day  of  ,  a.  d.  18     ;  and  fur- 

ther he  saith  not. 

If  executions  have  been  issued  and  levied  in  order  to  perpetuate 
a  lien,  that  fact  should  be  stated,  and  the  date  of  the  levy,  as  the 
priority  after  the  lapse  of  a  year  will  depend  upon  the  date  of  a 
levy. 

These  answers  do  not,  in  form  and  substance,  conform  to  the 
code ;  and  yet  no  other  form  is  adapted  to  the  nature  of  the  case. 
Hence  this  must  be  adopted,  either  by  virtue  of  a  forced  construc- 
tion of  the  code,  or  because  the  code  provides  no  remedy,  and  then 
we  must  go  to  the  old  law  and  practice. 


END   OP   VOL.    I. 


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&&  ooo 


